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wm.  i-''ir 


* "'. 


Before  the 

CENTRAL  AMERICAN 
COURT  OF  JUSTICE 


The  Republic  of  El  Salvador 

Against 

The  Republic  of  Nicaragua 


COMPLAINT 

OF  THE  REPUBLIC  OF  EL  SALVAIX)R 

WITH  APPENDICES 

1916 


Translation 


WASHINGTON 

PRESS  OP  GIBSON  BROS.,  INC. 

1917 


JX 

S  I  F7-^ 


IN  THE 

Central  American  Court  of  Justice 


The  Republic  of  Ki,  Salvador 

vs. 
The  Republic  of  Nicaragua 


COMPLAINT 

OF  THE  REPUBLIC  OF  EL  SALVADOR. 

The  Honorable, 

The  Central  American  Court  of  Justice  : 

In  the  name  and  on  behalf  of  the  Government  of  El 
Salvador,  the  Salvadorean  Foreign  Office,  under  the 
authority  of  the  convention  that  gave  legal  existence  to 
this  honorable  Court,  and  with  the  high  consideration 
which  is  its  due,  presents  this  its  complaint  against  the 
Government  of  Nicaragua,  in  the  form  and  for  the  purposes 
hereinafter  set  forth. 

On  the  5th  of  August,  19 14,  the  Government  of  Nicara- 
gua, through  the  medium  of  its  diplomatic  representative 
in  the  United  States,  Don  Emiliano  Chamorro,  joined 
with  the  Honorable  WilHam  Jennings  Bryan,  then 
Secretary  of  State,  in  signing  a  treaty  whereby,  in  addi- 
tion to  conveying  to  the  United  States  certain  rights  for 

Note. — Translated  by  Harry  W.  Van  Dyke,  of  the  Washington,  D.  C,  bar. 

(i) 


15920 


liKi 


« 
•  •  •  • 


the  construction  of  an  interoceanic  canal,  Nicaragua  ceded 
to  the  North  American  RepubHc,  for  a  term  of  ninety- 
nine  years,  renewable  at  its  expiration  for  the  same 
period,  a  part  of  the  Gulf  of  Fonseca  for  the  purpose  of 
establishing  a  naval  base. 

The  text  of  the  said  treaty — which  has  been  duly 
ratified  by  the  United  States  Senate  and  the  legislative 
bodies  of  Nicaragua — together  with  the  amendments 
thereof  made  by  the  Senate  of  the  first-named  republic, 
is  set  forth  in  Appendices  H  and  J. 

The  stipulations  contained  in  that  treaty  are,  in  the 
opinion  of  the  Government  of  El  Salvador,  extremely 
prejudicial  to  the  highest  interests  of  the  Salvadorean 
nation,  in  that  they  place  in  danger  its  integrity  and 
security,  violate  its  undeniable  rights  of  co-ownership 
in  the  Gulf  of  Fonseca  and  menace  its  most  legitimate 
aspirations  for  the  future  as  a  Central  American  nation. 
Indeed,  of  such  magnitude  and  gravity  is  that  danger, 
that  violation  and  that  menace  to  which  the  treaty 
exposes  those  vital  interests,  rights  and  aspirations  of  the 
republic,  that  the  Government  of  El  Salvador  is  com- 
pelled to  present,  and,  through  the  medium  of  this  Foreign 
Office,  does  hereby  present,  this  complaint  against  the 
Government  of  Nicaragua,  secure  in  the  conviction  that 
justice  is  on  its  side  and  that  its  complaint  is  founded 
upon  bases  legally  sound  and  clear. 


•    *     • 


I. 

THE  TREATY  IS  AN  OFFICIAL  ACT  OF  THE  GOVERN- 
MENT OF  NICARAGUA  THAT  PLACES  IN  DANGER 
THE  NATIONAL  SECURITY  OF  EL  SALVADOR. 

It  must  be  patent  to  every  one  that  the  establishment, 
by  a  powerful  State,  of  a  naval  base  in  the  immediate 
vicinity  of  the  Republic  of  El  Salvador  would  constitute 
a  serious  menace — not  merely  imaginary,  but  real  and 
apparent — to  the  freedom  of  life  and  the  autonomy  of 
that  republic.  And  that  positive  menace  would  exist,  not 
solely  by  reason  of  the  influence  that  the  United  States, 
as  an  essential  to  the  adequate  development  of  the  ends 
determined  upon  for  the  efficiency  and  security  of  the 
proposed  naval  base,  would  naturally  need  to  exercise  and 
enjoy  at  all  times  in  connection  with  incidents  of  the 
highest  importance  in  the  national  life  of  the  small  neigh- 
boring States,  but  would  be  also,  and  especially,  vital 
because  in  the  future,  in  any  armed  conflict  that  might 
arise  between  the  United  States  and  one  or  more  military 
powers,  the  territories  bounded  by  the  Gulf  of  Fonseca 
would  be  converted,  to  an  extent  incalculable  in  view  of  the 
offensive  power  and  range  of  modern  armaments,  into 
belligerent  camps  wherein  would  be  decided  the  fate  of 
the  proposed  naval  establishment — a  decision  that  would 
inevitably  involve  the  sacrifice  of  the  independence  and 
sovereignty  of  the  weaker  Central  American  States,  as 
has  been  the  case  with  the  smaller  nations  in  the  present 
European  struggle  under  conditions  more  or  less  similar. 

It  would  seem  impossible  that  the  Government  of 
Nicaragua  could  have  taken  into  account  and  carefully 
considered  and  weighed  the  facts  and  possibilities  above 
suggested ;  on  no  other  theory  can  be  explained  its  defense 
of  its  action  in  concluding  the  Bryan-Chamorro  treaty — 


a  defense  that  is  scarcely  sustained  by  the  wholly  inad- 
missable  argument  that  in  contracting  Nicaragua  confined 
herself  within  the  exclusive  territorial  jurisdiction  that 
belonged  to  her  as  a  State,  and  was  not  "injuring  in  the 
slightest  degree  the  legitimate  rights  and  interests  of 
El  Salvador  or  those  of  any  other  Central  American  Repub- 
lics."    (Appendix  M.) 

In  support  of  its  contentions  in  this  regard,  this  Foreign 
Office  will  proceed,  in  the  light  of  public  internal  law  and 
international  law,  to  analyse  that  defense  and  thereby 
demonstrate  its  utter  lack  of  merit  from  legal  and  scientific 
standpoints. 

In  the  first  place,  this  Department  maintains  that  the 
Nicaraguan  Government,  in  concluding  the  Bryan- 
Chamorro  treaty,  failed  to  respect  one  of  the  most  con- 
spicuously legitimate  rights  of  a  nation,  which  is  that  no 
other  nation  may  in  any  manner  place  in  danger  its  se- 
curity, much  less  the  very  existence  of  its  independent 
life;  and  Complainant  repeats  that  the  fears  entertained  by 
the  Government  of  El  Salvador  in  this  connection  are 
very  far  from  being  unfounded. 

For  reasons  much  less  clear  and  positive  alarm  has  been 
manifested  on  various  occasions  by  governments  of  power- 
ful States  that  could  well  rely  on  their  material  forces 
for  the  preservation  of  their  political  existence  whenever 
menaced. 

In  the  Agadir  case,  Germany,  in  191 1,  sought  to  take 
possession  of  that  port  on  the  coast  of  Morocco  for  the 
establishment  of  a  naval  base,  and  France  and  England 
raised  their  voices  in  protest,  and,  when  Germany  decHned 
to  evacuate,  made  of  the  situation  a  casus  belli;  whereupon 
the  latter  was  forced  to  enter  into  an  adjustment  that 
resulted  in  the  withdrawal,  without  dishonor,  of  her 
marine  forces  which  had  been  landed  on  that  coast. 


On  that  occasion  France  maintained  that  Germany's 
act  constituted  a  menace  to  her  national  security  in  respect 
to  her  colonies  in  North  Africa;  and  England,  in  her  turn, 
made  it  clear  that  she  was  in  perfect  accord  with  the 
French  Government  in  its  understanding  of  the  situation. 
She  held  that  the  establishment  of  a  German  military  base 
at  a  strategical  point  such  as  Agadir,  lying  as  it  does  on 
England's  line  of  communication  with  her  colonies  in 
Southern  Africa  and  being  so  close  to  the  course  of  her 
ships  passing  through  the  Strait  of  Gibraltar  en  route  to 
Oriental  India,  could  not  but  constitute  also  a  menace  to 
the  security  of  her  commercial  and  political  interests  in 
the  Orient. 

More  in  point,  however,  is  the  case  of  the  United  States 
herself  in  the  matter  of  Magdalena  Bay.  Here  the  North 
American  Government  made  positive  objection  to  the 
transfer  to  a  Japanese  commercial  company,  by  certain 
United  States  citizens,  of  land  along  the  shores  of  that 
bay  which  had  been  ceded  to  them  by  the  Mexican  Govern- 
ment. The  matter  reached  the  Senate  and  gave  rise  to 
some  apprehension  in  that  body,  with  the  result  that  the 
so-called  Lodge  Resolution  was  adopted.  In  that  resolu- 
tion the  Senate  declared: 

"That  when  any  harbor  or  other  place  in  the 
American  continent  is  so  situated  that  the  occupation 
thereof  for  naval  or  military  purposes  might  threaten 
the  communications  or  the  safety  of  the  United 
States,  the  Government  of  the  United  States  could 
not  see  without  grave  concern  the  possession  of  such 
harbor  or  other  place  by  any  corporation  or  associa- 
tion which  has  such  a  relation  to  another  Govern- 
ment not  American  as  to  give  that  Government 
practical  power  of  control  for  national  purposes. 


The  American  Journal  of  International  Law  (Vol.  VI, 
No.  4,  for  October,  1912,  938),  referring  in  its  "Editorial 
Comment"  to  the  Lodge  Resolution,  states: 

"It  is  understood  that  in  secret  session  for  the 
last  word  but  one  'national'  was  substituted  for 
'naval  or  military. ' " 

And  the  Editor  continues : 

"A  Senate  resolution  is  an  expression  of  its  opinion. 
This  resolution  was  intended  to  be  an  announcement 
of  national  policy  to  foreign  Powers.  It  was  intro- 
duced after  information  had  been  sought  from  the 
President  on  the  subject.  This  went  to  show  that 
the  conduct  of  other  Powers  in  regard  to  those  lands 
had  been  entirely  correct.  In  the  discussion  which 
led  up  to  and  which  followed  the  introduction  of 
this  resolution  it  appeared  that  its  mover  chose  not 
to  regard  it  as  an  extension  of  the  Monroe  Doctrine, 
but  as  based  upon  the  law  or  right  of  self-defense 
which  is  fundamental,  the  Agadir  incident  being  a 
precedent.  But  in  Africa,  the  German  action  was 
official,  Governmental,  whereas  in  Magdalena  Bay, 
as  Senator  Rayner  had  brought  out  in  May,  it  was  a 
question  of  private  commercial  use  only.  Has  the 
United  States  a  right  to  assume  that  private  com- 
mercial use  of  such  a  harbor  as  this,  could  be  so  easily 
converted  into  Government  use  as  to  warrant  its 
prohibition  before  any  sign  whatever  of  abuse  or  of 
danger  was  visible?  That  the  Senate  so  believes  is 
clear,  for  it  passed  the  Lodge  Resolution.  That  the 
legal  mind  shares  this  view  is  not  so  clear.  Let  us 
state  it  in  general  terms.  On  the  ground  of  self- 
defense  a  State  may  forbid  its  neighbor  to  sell  lands 
of  strategic  value  to  the  private  subject  of  a  third 
Power,  there  being  no  act,  but  mere  suspicion,  to 
warrant  the  fear  that  the  third  Power  will  make 
sinister  use  of  its  subject's  property.  What  becomes 
of  the  sovereign  right  of  the  neighbor  to  dispose  of 
its    lands    for    commercial     development?     If     the 


principle  of  self-defense  is  unduly  stretched,  will  it 
not  break  down  and  become  ridiculous?  Is  an 
attitude  of  constant  suspicion  consistent  with  inter- 
national good  will?  These  are  doubts  which  fairly 
arise  from  the  Lodge  Resolution." 

The  Lodge  Resolution  is  susceptible  of  being  mis- 
leading under  the  test  of  legal  opinion,  because  the 
principle  maintained  therein  does  not  refer  to  official  acts  or 
measures  of  government;  nevertheless,  it  shows  how  far 
in  the  opinion  of  the  North  American  Senate,  a  nation, 
even  though  powerful,  may  give  way  to  its  fears  and 
display  its  zeal  for  national  security,  and  for  this  reason 
the  Foreign  Office  cites  the  Magdalena  Bay  case.  Fur- 
thermore, the  Senate's  resolution  puts  in  strong  relief  the 
fact  that  the  opinion  of  that  high  legislative  body  of 
the  United  States — the  nation  with  which  the  Bryan- 
Chamorro  treaty  was  concluded — is  wholly  in  conformity 
with  El  Salvador's  contentions  against  that  treaty, 
however  much  that  same  high  body,  in  its  amendments  to 
the  said  convention  adopted  at  the  time  of  its  ratifica- 
tion, showed  that  it  did  not  have  it  in  mind  to  affect  any 
existing  right  in  either  of  the  States  of  Costa  Rica,  El 
Salvador,  or  Honduras,  which,  however,  it  was  recog- 
nized, had  protested /or /^ar  oj  the  contrary.  This  declara- 
tion of  the  United  States  Senate  is  in  no  way  consonant 
with  the  spirit  of  the  Lodge  Resolution  and  the  trend  of 
opinion  which,  but  a  few  years  before,  controlled  that 
body  in  adopting  the  Lodge  Resolution. 

Consequently  the  reasoning  on  which  the  Government 
of  Nicaragua  relies  in  support  of  the  legitimacy  of  its 
action  in  concluding  the  Bryan-Chamorro  treaty,  when 
it  says  that  it  contracted  "without  injuring  in  the  slightest 
degree  the  legitimate  rights  and  interests  of  El  Salvador 
or  those  of  any  other  Central  American  republics,"  is 
in  manifest  contradiction  of  the  positions  taken  by  other 


nations,  for  instance,  the  North  American  nation,  through 
the  medium  of  its  national  legislature;  and  it  stands  to 
reason  that  the  fears  entertained  by  the  Government  of 
El  Salvador  are  of  greater  moment  than  were  those  of 
England  and  France  in  the  Agadir  case,  and  are  of  a 
character  more  definite  and  real  than  the  fears  that  agi- 
tated the  United  States  in  the  Magdalena  Bay  and  other 
analogous  cases  contemplated  by  the  Lodge  Resolution. 

II. 

THE  BRYAN=CHAMORRO  TREATY  IGNORES  AND 
VIOLATES  THE  RIGHTS  OF  OWNERSHIP  POS- 
SESSED BY  EL  SALVADOR  IN  THE  GULF  OF 
FONSECA. 

From  the  sixteenth  century,  when  this  gulf  was  dis- 
covered by  the  Spaniards  who  conquered  Central  America 
and  who  named  it  the  Gulf  of  Fonseca  in  honor  of  the 
President  of  the  Council  of  the  Indies,  in  whose  charge 
was  reposed  the  government  of  these  territories  as  repre- 
sentative of  the  Crown  of  Castile,  it  belonged  throughout 
the  entire  period  of  the  Spanish  dominion  to  the  mother 
country,  whose  rights  of  exclusive  ownership  in  its  waters 
were  never  placed  in  doubt.  On  the  emancipation  of 
Central  America,  that  dominion  passed  into  the  patri- 
mony of  the  Federal  Republic  formed  by  the  five  Central 
American  States. 

The  exclusiveness  of  Spain's  ownership  in  those  waters 
during  the  Spanish  domination,  and  the  exclusiveness  of 
the  ownership  of  the  Central  American  States  confederated 
into  a  republic  after  their  emancipation,  as  well  as  the 
exclusiveness,  subsequently,  of  that  same  ownership  as 
exercised  by  the  three  States  of  El  Salvador,  Honduras, 
and  Nicaragua — which  States,  by  reason  of  their  geo- 
graphical  situation,   almost   surrounded   those   waters — 


are  evidenced  by  the  circumstance  that  their  use  for 
fishing  and  other  analogous  purposes  has  never  been 
exercised,  or  even  attempted  to  be  exercised,  by  other 
nations. 

The  Government  of  Nicaragua  maintains  that  the 
waters  of  the  Gulf  of  Fonseca  are  not  common  to  the 
three  States,  but,  they  having  for  many  years  belonged 
historically  to  a  single  political  entity,  which  was  first 
the  Spanish  Government  in  Central  America,  and  after- 
wards the  Federal  Republic  of  Central  America,  the 
conclusive  truth  results  that,  on  the  dissolution  of  the 
Federation  wdthout  effecting  the  dehmitation  of  the 
three  riparian  States,  in  relation  to  their  sovereignty  in 
the  waters  of  the  Gulf,  those  three  States  have  continued 
to  enjoy  ownership  in  common  therein.  And  it  matters 
not  that  Honduras  and  Nicaragua,  in  consequence  of  the 
Convention  for  the  Demarcation  of  Limits,  entered  into 
on  the  7th  of  October,  1894,  fixed,  in  1900,  a  divisionary 
line  between  those  States  in  the  waters  of  the  Gulf,  because 
that  action  was  brought  about  without  the  intervention 
of  El  Salvador,  and  such  intervention  was  indispensable 
to  its  validity  and  practical  effectiveness,  since  it  related 
to  property  common,  not  alone  to  Honduras  and  Nica- 
ragua, but  to  the  former  sovereign  State  also. 

That  antecedent,  then,  in  no  wise  affects  the  root  of 
the  question.  On  the  contrary,  it  shows,  as  did  the 
attempt  that  was  made  with  the  same  object  in  view  by  El 
Salvador  and  Honduras,  in  1884 — without  consummation, 
however — that  the  idea  which  has  always  prevailed  among 
all  three  of  the  riparian  States  is  that  their  ownership 
over  the  waters  of  the  Gulf  of  fonseca  is  an  undivided 
ownership. 

The  Foreign  Office  of  Nicaragua,  in  the  annual  report 
of  the  Ministry  of  Foreign   Relations  to  the  National 


lO 


Congress  for  the  year  19 14,  after  explaining  that  a  Hne 
separating  the  waters  of  the  Gulf  had  been  fixed  upon  by 
Honduras  and  Nicaragua  by  virtue  of  the  convention 
above  cited,  makes  the  following  statement: 

"There  exists,  then,  no  community  between 
Nicaragua  and  Honduras  in  the  Gulf  of  Fonseca, 
and  El  Salvador  being  neither  a  neighbor  nor  a 
co-boundary  State  with  us,  and  the  Republic  of 
Honduras  lying  in  between,  the  community  claimed 
with  Nicaragua  and  alleged  in  the  Salvadorean  pro- 
test does  not  and  cannot  exist. 

"Furthermore,  the  status  of  common  ownership 
in  and  the  indivisibleness  of  the  waters  of  a  bay  is 
very  different  from  that  of  an  inheritance,  or  an 
estate  in  lands,  for,  whereas,  with  respect  to  the 
former,  there  exists  the  general  principle  that  the 
parts  adjacent  to  their  coasts  belong  to  the  several 
nations — so  that,  on  the  laying  out  of  the  terrestrial 
boundary  line,  demarcation  of  the  maritime  waters  is 
understood — there  is  no  similar  principle  with  respect 
to  landed  properties,  since  at  one  point  or  another 
the  coparceners  thereof  stand  to  receive  what  belongs 
to  them  indifferently,  and  even  in  the  case  where 
those  landed  properties  are  contiguous,  the  civil  law 
provides  that  the  portion  to  be  adjudicated  to  each 
coparcener  shall  be  that  part  of  the  common  prop- 
erty which  is  contiguous  to  his  own  land. 

"One  nation  cannot  possess  the  right  to  a  greater 
portion  of  the  waters  of  a  bay  possessed  in  common 
with  others  than  that  shown  to  belong  to  it  by  the 
extension  of  its  respective  coasts;  and  the  Republic 
of  El  Salvador,  being  situated  at  the  extreme  North- 
west of  the  Bay  of  Fonseca,  and  that  of  Nicaragua  in  . 
the  extreme  Southeast,  the  two  being  separated  by 
Honduras,  the  maritime  ownership  of  the  first-named 
Republic  could  not  possibly  extend  one  inch  farther 
than  the  point  fixed  by  the  limit  of  its  coasts  which 
separates  it  from  the  Honduran  territory."  (Appen- 
dix M.) 


II 


The  paragraphs  copied  from  the  report  referred  to 
contain  the  opinion  of  the  Nicaraguan  Foreign  Office. 
That  opinion  presupposes  that  the  sovereign  ownership 
and  jurisdiction  of  El  Salvador  does  not  extend  over  all 
the  waters  of  the  Gulf  far  enough  to  meet  and  be  con- 
founded with  the  ownership  and  jurisdiction  pertaining  to 
the  sovereignties  of  Honduras  and  Nicaragua.  More- 
over, the  report  is  also  based  on  the  demarcation  effected 
in  1900  by  the  two  last  named  republics  whereby  a  line 
separating  those  waters  was  established  by  them. 

To  the  first  proposition  this  Foreign  Office  will  address 
itself  at  once  in  order  to  demonstrate  that  the  views  of 
the  Nicaraguan  Foreign  Office  on  that  point  do  not  con- 
form with  the  facts  as  they  are  presented  in  the  Hght  of 
the  principles  of  international  law. 

Respecting  the  second  proposition,  it  repeats  that  the 
line  of  demarcation  referred  to  by  the  Nicaraguan  Minister 
can  not  produce  in  any  way  the  effect  ascribed  to  it  by 
him^ — that  is,  to  restrict  the  rights  of  co-sovereignty  and 
co-ownership  that  El  Salvador  has  always  possessed  in 
the  Gulf  of  Fonseca  from  the  dissolution  of  the  Central 
American  Federation  down  to  the  present,  because  she 
was  not  a  party  to  the  convention  involved,  nor  did  she 
intervene  in  any  other  manner  in  the  operations  and  acts 
that  culminated  in  the  establishment  of  that  line. 

The  Gulf  of  Fonseca,  by  reason  of  the  form  in  which,  as 
heretofore  stated,  ownership  over  its  waters  has  been 
exercised  since  the  sixteenth  century,  belongs,  as  main- 
tained by  the  Government  of  El  Salvador  in  its  protests 
addressed  to  the  Department  of  State  of  the  United 
States,  to  the  category  of  so-called  "historic  bays"  as  do 
Chesapeake  and  Delaware  Bays  on  the  coast  of  the 
great  RepubHc  of  the  North,  and  the  Bays  of  Conception, 
Chaleurs  and  Miramichi  in  the  Dominion  of  Canada. 


12 


This  Foreign  Office  refers,  in  its  entirety,  to  what  it 
laid  before  the  Department  of  State  of  the  United  States 
in  demonstration  of  the  fact  that  the  Gulf  of  Fonseca  is  a 
bay  that  must  be  considered  as  under  the  exclusive  owner- 
ship of  the  proprietary  riparian  States. 

The  doctrines  it  has  maintained  in  this  regard  and  in 
relation  to  other  points  connected  with  the  case  presented 
in  this  complaint  and  set  forth  in  the  respective  documents 
(Appendices  A,  C,  Ch,  E,  I  and  K)  from  the  time  of  the 
conclusion  by  the  Governments  of  the  United  States  and 
Nicaragua  of  the  Chamorro-Weitzel  treaty  on  the  9th  of 
February,  1913 — for  which,  subsequently,  the  Bryan- 
Chamorro  treaty  was  substituted — are  clear  doctrines, 
based  upon  the  admitted  principles  of  international  law. 

But  one  illustration  need  be  pointed  out  at  this  time: 

The  circumstance  that  the  shores  of  the  Gulf  are  owned 
by  three  States — El  Salvador,  Honduras  and  Nicaragua— 
and  not  by  a  single  State,  is  in  no  way  inconsistent,  as 
might  be  believed,  with  the  application  to  the  Gulf  of 
Fonseca  of  the  principle  governing  territorial  bays. 
Those  three  States,  proprietors  of  the  coasts  that  surround 
the  Gulf,  are  not  States  which,  throughout  the  course  of 
their  history,  have  always  been  independent  one  of 
another;  on  the  contrary,  they  are  States  which  formerly 
constituted  parts  of  a  single  international  political  entity 
and  which,  in  their  constitutions,  still  recognize  them- 
selves as  forming  parts  disintegrated  from  that  larger 
entity.  The  case  presented  by  them  in  this  particular, 
cannot  be  likened,  for  example,  to  that  of  the  Gulf  of 
Bothnia  in  the  Baltic  Sea  or  to  that  of  the  Black  Sea. 
In  those  and  in  all  analogous  cases — which  have  given 
occasion  for  the  opinion  of  certain  law  writers  that  a  bay, 
before  it  can  be  held  to  be  closed  water,  must  meet  the 
condition,  among  others,  that  its  coasts  belong  to  a  single 


13 

nation — the  fact  must  not  be  forgotten  or  ignored  that 
that  opinion  is  founded  on  the  proposition  that  the  States 
which  owned  the  coasts  were  States  that  never  formed  a 
single  international  political  entity.  Russia  and  Sweden, 
in  the  first  example,  never  constituted  a  single  nation; 
nor,  in  the  second,  have  Russia  and  Turkey,  which 
enclose  the  Black  Sea,  ever  been  States  pohtically  united 
in  this  sense — Bulgaria  and  Rumania,  independent 
States  to-day,  formed  an  integral  part  of  Turkey  three- 
quarters  of  a  century  ago. 

This  undoubtedly  is  the  reason  at  the  root  of  the  theory 
of  those  authors.  In  fact  the  attempt  to  convert  the 
extensions  of  water  embraced  between  the  coasts  of  nations 
that  have  always  been  independent  of  each  other,  into 
closed  bays  would  have  been  wholly  lacking  in  philo- 
sophical fundament.  This  is  not  true  when  those  nations 
are  but  disintegrated  parts  of  a  prior  international  political 
entity,  as  is  the  case  with  El  Salvador,  Honduras  and 
Nicaragua,  whose  exclusive  dominion,  derived  from  the 
dominion  exercised  over  the  waters  of  the  Gulf  of  Fonseca 
by  that  larger  international  political  entity,  continues  to 
be  common  among  the  States  into  which  the  parent  State 
was  broken  up. 

The  Gulf  of  Fonseca,  apart  from  the  character  of  an 
historic  bay  with  which  it  is  fully  clothed,  presents,  besides, 
the  particular  condition  that  its  entrance,  across  the 
summits  of  the  islands  of  Meanguera  and  Meanguerita 
on  the  line  traced  from  Chiquirin  Point  on  the  mainland 
of  El  Salvador,  to  Rosario  Point  in  the  northeast  region  of 
the  peninsula  that  forms  the  Nicaraguan  promontory  of 
Cosigiiina,  is  not  of  an  extent  greater  than  that  prescribed 
by  international  law  as  essential  to  considering  a  bay  as 
"territorial"  or  "closed." 

That  distance  is  generally  fixed  by  the  law  writers  at 
ten  miles,   although   some  have   extended   it   to   twelve 


14 

miles,  maintaining  that  when  the  so-called  inter  fauces 
terrcc  line  does  not  exceed  ten  or  twelve  miles,  the  bay 
must  be  held  to  be  territorial  or  closed. 

The  geographical  situation  of  the  Salvadorean  islands 
in  the  Gulf,  and  the  legal  fact  that  they  are  separated 
from  each  other  and  from  the  island  nearest  the  mainland, 
and  the  latter  from  Chiquirin  Point,  by  narrow  straits 
whose  lower  depths  are  sown  with  sand  banks  that  in 
some  instances  prevent  navigation  by  vessels  of  large 
draft,   and,   in   others,   permit  navigation  only  through 
channels  of  narrow  width  that  have  been  established  by 
soundings,    are    elements    sufhcient   under   international 
law  to  sustain  conclusively  that  the  chain  formed  by 
those  islands  constitutes  a  prolongation  of  the  national 
territory  into  the  Gulf;  so  that  the  Salvadorean  mainland 
reaches   out   along   the   line   above   indicated   as   far   as 
Meanguerita   Island   and   narrows   the   entrance   to   the 
Gulf  at  that  height,  in  the  direction  of  Rosario  Point  on 
the  Nicaraguan  coast,  to  a  width  of  less  than  ten  miles, 
counting  such  miles  at  sixty  to  a  degree  of  latitude. 

This  Foreign  Office  claims  that  that  width  is  less  than 
ten  miles  because  the  measurement  is  verified  by  the  scale 
on  the  best-known  maps  of  El  Salvador,  Honduras,  and 
Nicaragua.  Those  maps  show  that  the  width  of  the  Gulf's 
mouth  proper  is  at  most  thirty-five  kilometers,  which,  at 
one  kilometer  to  0.539  (five  hundred  and  thirty-nine 
thousandths)  of  a  nautical  mile,  equalling  one-sixtieth  of 
a  degree  of  latitude,  are  equivalent  to  eighteen  miles  and 
eight  hundred  and  sixty-five  thousandths  (18.865)  of  a 
mile  (Lloyd's  Calendar  for  1916,  page  213,  on  "Nautical 
Measures");  that  the  width  of  the  entrance  between 
Meanguerita  Island  and  Rosario  Point  at  its  widest  is 
only  a  little  less  than  half  that  distance,  that  is,  nine 
miles  and  four  hundred  and  thirty-two  thousandths  (9.432) 


15 

of  a  mile;  that  the  latter  width  is  cut  by  the  sand  banks 
or  Farallones  that  form  a  prolongation  of  Nicaraguan 
territory  and  in  reality  reduce  that  entrance  to  a  much 
smaller  number  of  miles.  The  foregoing  claim  is  further- 
more in  accord  with  the  technical  report  contained  in 
Appendices  O  and  P. 

Bynkerschoek,  who  stated  the  general  maxim  imperium 
terrcB  finiri  ubi  finitur  armorum  vis  in  his  treatise,  Diser- 
tatione  de  Dominio  Maris,  says : 

"I  am  of  the  opinion  that  the  possession  of  an 
adjacent  sea  should  extend  as  far  as  that  sea  can  be 
considered  subject  to  the  land ;  certain  it  is  that  only 
up  to  that  point  can  it  be  always  well  defended,  even 
though  navigation  thereon  may  not  be  continuous, 
and  thus  far  the  possession  contemplated  by  the 
law  is  protected,  because  there  can  be  no  doubt  that 
he  who  possesses  a  thing  in  such  manner  that  no 
one  else  may  possess  it  contrarily  to  his  will,  possesses 
it  continuously.  Wherefore  we  do  not  concede 
dominion  over  an  adjacent  sea  more  extensive  than 
can  be  exercised  from  the  land.  *  *  *  Thus, 
then,  it  seems  to  us  clearly  more  just  that  the  domin- 
ion of  the  land  (over  the  sea)  should  extend  as  far 
as  projectiles  may  reach,  since  up  to  that  point  it 
not  only  appears  that  we  dominate  but  that  we 
possess.  Besides,  I  am  speaking,  in  this  epoch  in 
which  we  use  these  machines;  in  other  epochs  it 
could  be  said  generally:  that  the  dominion  of  the 
land  (over  the  sea)  is  limited  to  the  range  of  arms, 
because  that  range,  as  we  have  said,  protects  posses- 
sion." 

The  law  writers  and  jurisconsults  have  applied  the 
Bynkerschoek  rule  in  fixing  the  limit  of  the  sovereignty 
of  nations  over  the  sea.  In  order  to  determine  whether 
the  waters  of  a  bay  are  territorial  or  not,  they  came  to 
estabUsh  as  a  standard  the  possibiUty  or  impossibility 


i6 

of  defending  the  entrance  to  those  waters,  and  in  that 
manner  have  arrived  at  the  estabUshment  of  the  maximum 
extent  of  the  Hne  inter  jauces  terrae  which  has  been  fixed 
by  some  at  ten  miles  and  by  others  at  as  many  as  twelve 
miles. 

The  celebrated  Swiss  jurisconsult,  Emer  de  Vattel  {Le 
Droit  des  Gens  ou  Principes  de  la  Loi  Naturelle,  1775, 
vol.  I,  p.  142),  wrote  in  1758  as  follows: 

"All  that  we  have  said  of  that  part  of  the  sea 
adjacent  to  the  coast  may  be  applied,  and  with 
greater  reason,  to  passes,  bays,  and  straits,  for  they 
are  more  susceptible  of  occupation  and  of  more 
importance  to  the  security  of  the  country.  But 
I  refer  to  the  bays  and  straits  of  small  extent  and  not 
to  those  vast  expanses  of  sea  to  which  those  names 
are  sometimes  given,  as  is  the  case  with  Hudson  Bay 
and  the  Strait  of  Magellan,  over  which  dominion, 
and  much  less  right  of  property,  cannot  be  extended. 
The  bay  whose  extrance  can  he  defended  is  suscep- 
tible oj  possession  and  can  be  subjected  to  the  laws 
of  the  sovereign  country;  and  it  is  important  that 
this  should  be  so,  since  a  country  could  be  attacked 
more  easily  from  those  places  than  on  an  open  coast 
exposed  to  the  winds  and  to  the  impetuosity  of  the 
waves." 

Germany,  Belgium,  Denmark,  France,  Great  Britain 
and  Holland,  on  the  6th  of  March,  1822,  signed  a  con- 
vention for  the  regulation  of  fishing  in  the  North  Sea 
outside  of  territorial  waters.  In  Article  2  of  that  con- 
vention the  exclusive  right  in  the  fishermen  of  each  nation, 
to  fish  within  a  radius  of  three  miles,  measured  from  their 
beach  at  low  water,  is  recognized.  The  same  article  goes 
on  to  say: 

"For  the  bays  the  radius  of  three  miles  should  be 
measured  from  a  straight  line  drawn  across  the  bay 
at  the  points  nearest  its  entrance  and  in  the  first  part 
at  which  the  opening  does  not  exceed  ten  miles.'' 


17 

The  doctrine  which  may  be  called  "the  doctrine  of 
promontories"  was  established  as  the  proper  criterion  in 
the  convention  concluded  between  France  and  Great 
Britain  on  the  2nd  of  August,  1839,  wherein  it  was 
stipulated : 

"That  the  distance  of  three  miles  established  as 
the  limit  for  the  exercise  of  exclusive  fishing  rights 
on  the  coasts  of  the  two  States  shall,  in  the  case  of 
bays  whose  mouths  do  not  exceed  the  width  of  ten 
miles,  be  measured  from  a  straight  line  drawn  from 
promontory  to  promontory." 

Sir  Robert  Phillimore,  one  of  the  most  distinguished 
of  the  English  international  law  writers  of  the  middle  of 
the  nineteenth  century,  Privy  Counsellor  of  England, 
referring  to  the  limits  of  territorial  waters,  says  in  his 
Commentaries  upon  International  Law,  ist  edition  (1854), 
Vol.  I,  page  179: 

"Various  claims  have  been  made,  and  various 
opinions  pronounced,  at  different  epochs  of  history, 
as  to  the  extent  to  which  territorial  property  and 
jurisdiction  may  be  extended.  But  the  rule  of  law 
may  be  now  considered  as  fairly  established :  namely, 
that  this  absolute  property  and  jurisdiction  does  not 
extend,  unless  by  the  specific  provisions  of  a  Treaty 
or  an  unquestioned  usage,  beyond  a  marine  league 
(being  three  miles),  or  the  distance  of  a  cannon-shot 
from  the  shore  at  low  tide.  *  *  *  'In  the  sea, 
out  of  the  reach  of  cannon-shot'  (says  Lord  Stowell), 
'universal  use  is  presumed.'  This  is  the  limit  fixed 
to  absolute  property  and  jurisdiction;  but  the  rights 
of  independence  and  self-preservation  in  time  of  peace, 
justify  a  nation  in  preventing  her  revenue  laws  from 
being  evaded  by  foreigners  beyond  this  exact  limit; 
and  both  Great  Britain  and  the  United  States  of 
North  America  have  provided  against  frauds  being 
practised  on  their  revenues,  by  prohibiting  foreign 


i8 

goods  to  be  transhipped  within  the  distance  of  four 
leagues  of  the  coast,  and  exercising  a  jurisdiction  for 
this  purpose  in  time  of  peace;  and  in  time  of  war  by 
preventing,  within  a  similar  distance,  the  hovering  of 
foreign  belligerent  ships  so  near  the  neutral  seas  as 
to  menace  and  alarm  vessels  homeward  or  outward 
bound." 

The  Institute  of  International  Law,  whose  members 
figure  among  the  greatest  statesmen  of  the  nations  of  the 
world,  at  its  session  held  in  Paris  in  March,  1894,  adopted 
the  following  resolutions  relating  to  territorial  seas: 

"Art.  2.  The  territorial  sea  extends  six  marine 
miles  (sixty  to  a  degree  of  latitude)  from  low  water 
mark  along  the  entire  coasts. 

"Art.  3.  For  bays,  the  territorial  sea  follows  the 
sinuosities  of  the  coast,  except  that  it  is  measured 
from  a  straight  line  drawn  across  the  bay  in  the  part 
nearest  the  entrance  toward  the  sea  where  the 
distance  between  the  two  shores  of  the  bay  is  twelve 
marine  miles,  unless  a  continuous  and  established 
usage  shall  have  established  a  greater  width." 
{Annuaire  de  VInstitut  de  Droit  International,  Vol. 
XIII,  p.  329,  Paris,  March,  1894.) 

The  articles  above  quoted  were  adopted  by  the  Institute 
by  a  large  majority.  M.  Edouard  Rolin,  of  Brussels,  in 
proposing  the  adoption  of  the  twelve  miles  instead  of  ten, 
explained  that  ' '  they  were  the  double  of  the  six  miles  that 
were  fixed  upon  for  the  territorial  sea  and  were  adaptable 
for  that  reason  in  a  form  more  advantageous  to  the  logical 
development  of  the  project." 

The  doctrine  maintained  by  El  Salvador  in  relation  to 
the  Gulf  of  Fonseca  was  enunciated  and  recognized  by 
Great  Britain  and  the  United  States  in  the  arbitral  award 


19 

rendered  at  the  Hague  on  the  7th  of  September,  19 10,  on 
the  fisheries  question.     The  award  held: 

"It  has  been  further  contended  by  the  United 
States  that  the  renunciation  appHes  only  to  bays, 
six  miles  or  less  in  width  'inter  fauces  terrcB,'  those 
bays  only  being  territorial  bays  because  the  three 
mile  rule  is,  as  shown  by  this  treaty,  a  principle  of 
international  law  applicable  to  coasts  and  should  be 
strictly  and  systematically  applied  to  bays. 

"But  the  tribunal  is  unable  to  agree  with  this 
contention : 

"  (a)  Because  admittedly  the  geographical  character 
of  a  bay  contains  conditions  which  concern  the  inter- 
ests of  the  territorial  sovereign  to  a  more  intimate 
and  important  extent  than  do  those  connected  with 
the  open  coast.  Thus  conditions  of  national  and 
territorial  integrity,  of  defense,  of  commerce  and  of 
industry  are  all  vitally  concerned  with  the  control  of 
the  bays  penetrating  the  national  coast  line." 

In  consonance  with  the  Bynkerschoek  principle  relating 
to  territorial  ownership  or  dominion  over  the  adjacent 
sea  to  the  extent  of  the  range  of  cannon,  many  years  ago 
El  Salvador  made  solemn  declaration  that  the  territorial 
sea  of  the  Republic  on  the  coast  of  the  Maritime  Depart- 
ment of  La  Union  comprised  the  Bay  of  Conchagua,  that 
part  of  the  Gulf  of  Fonseca  in  which  are  situated  the 
Salvadorean  islands,  and  the  territorial  sea  as  far  as  the 
parallel  of  the  eastern  mouth  of  the  San  Miguel  River. 
(Art.  13,  No.  I,  of  the  Law  of  Navigation  and  Marine. 
Appendix  N.) 

Consequently,  the  Gulf  of  Fonseca  is  enclosed,  in  its 
entirety,  on  that  side,  because  what  is  called  dominium, 
and  especially  the  imperium,  extend,  in  accordance  with 
international  law,  as  far  as  twelve  miles,  and  the  distance 
between  Meanguerita  and  Rosario  Point  on  the  Cosigiiina 
promontory,  as  has  been  shown,  is  not  even  ten  miles. 


20 


El  Salvador  may  and  does  exercise  the  powers  of  imperium, 
that  is,  the  police  power  for  purposes  connected  with  the 
security  of  the  country  and  the  fiscal  laws,  as  far  as  the 
immediate  vicinity  of  the  Nicaraguan  littoral  in  the  Gulf. 
From  which  it  results  that,  as  Nicaragua  may  exercise 
equal  powers  over  the  same  expanse  of  waters  and  for 
the  same  purposes,  the  waters  comprised  between  the 
Salvadorean  islands  and  the  Nicaraguan  mainland  are 
under  all  criteria  waters  common  to  the  two  States,  and 
neither  can  dispose  of  them  exclusively  in  order  to 
convey  to  a  foreign  nation  a  naval  base  or  for  any  other 
purpose  outside  the  limits  of  what  is  known  as  innocent 
use,  without  the  express  consent  of  the  co-sovereign  or 
co-owner. 

The    well-known    American    publicist,     Don    Andres 
Bello,  says: 

"Sovereignty,  insofar  as  it  relates  to  things,  is 
called  dominio  (ownership)  and,  insofar  as  it  gives 
laws  and  orders  to  persons,  is  properly  called  imperio 
(jurisdiction) .  The  functions  of  the  two  are  repeatedly 
confused  and  a  given  act  may  pertain  at  one  time  to 
the  dominio  and  at  another  to  the  imperio,  accord- 
ingly as  it  may  be  considered  as  relating  to  persons 
or  to  things.  However,  there  are  subjects  of  domestic 
administration  as  to  which  the  exercise  of  imperio, 
and  consequently  of  jurisdiction,  outside  the  limits 
oj  the  territory,  is  tolerated." 

The  author  cites  as  his  authority  the  British  statute  of 
George  II,  which  prohibits  the  transshipment  of  foreign 
merchandise  beyond  a  distance  of  less  than  four  leagues 
(i2  miles)  from  the  coast  without  paying  duties;  also 
an  act  of  the  North  American  Congress  of  the  same  tenor, 
dated  the  2d  of  March,  1799,  which  contains  the  identical 
prohibition.      He   makes   mention   of   the   positive   and 


21 


significant  words  of  the  great  judge,  Sir  William  Scott, 
who  declared  in  the  case  of  "The  Louis"  that: 

' '  The  maritime  states  have  attributed  to  themselves 
the  right  of  visit  and  registration,  in  time  of  peace, 
within  certain  portions  of  the  adjacent  sea,  which, 
by  the  courtesy  of  nations,  have  been  regarded  as 
parts  of  the  dominions  of  those  states,  for  various 
domestic  purposes,  and  above  all,  in  connection  with 
fiscal  and  defensive  laws  more  immediately  dealing 
with  their  health  and  well-being.  Such  are  our  laws 
for  maritime  security,  which  subject  foreign  vessels 
to  this  examination  at  moderate  distances  from  the 
coasts." 

This  doctrine  has  been  acclaimed  in  many  decisions 
of  the  United  States  Supreme  Court  as  being  "in  con- 
formity with  the  laws  and  usages  of  nations"  and  France 
has  exercised  the  fiscal  police  power  through  the  medium 
of  her  revenue  cutters  as  far  out  as  four  leagues;  that  is, 
twelve  miles. 

It  is,  therefore,  incontrovertible  that  nations  may 
exercise,  for  fiscal  and  defensive  purposes,  the  powers  of 
imperium  to  the  distance  indicated,  which  clearly  implies 
that  the  belt  of  jurisdictional  waters  of  El  Salvador,  Hon- 
duras, and  Nicaragua  within  the  Gulf  of  Fonseca — con- 
trary to  the  claims  of  the  Nicaraguan  Foreign  Office  in 
the  Report  on  Foreign  Relations,  above  cited — are  inter- 
mingled and  confused,  and  consequently  those  juris- 
dictional waters  wherein  those  states  may  exercise  their 
rights  of  defense,  national  security,  and  police,  are  waters 
in  which  they  may  exercise  their  rights  as  co-sovereigns 
and  co-owners,  because  the  intermingling  or  confusion 
of  waters  pertaining  to  two  or  more  states  in  gulfs,  bays, 
straits  or  rivers  has  always  been  called  co-ownership  or 
community  in  waters,  according  to  the  teaching  of  the 
international   law   writers,  especially    Fiore,    Bluntschli, 


22 


Perels,  and  Heffter.  It  may  be  added  that  that  doctrine 
of  co-proprietorship,  joint-ownership,  or  co-sovereignty, 
had  ah-eady  been  taught  by  Hugo  Grotius,  the  father  of 
international  law,  in  his  masterful  treatise  De  Jure  Belli 
ac  Pads,  Book  II,  Chapters  3,7,  and  8. 

Respecting  the  distances  of  ten  and  twelve  miles  to  which 
imperium  (jurisdiction)  over  the  adjacent  or  territorial 
sea  should  extend,  not  only  have  England,  the  United 
States,  France,  El  Salvador,  Honduras  and  Nicaragua, 
by  their  laws  established  that  jurisdictional  zone  of 
marginal  waters,  but  also  Chile  in  Article  593  of  her  Civil 
Code,  and  Argentina  in  No.  i  of  Article  2340  of  her  Civil 
Code. 

The  distinguished  North  American  jurist,  Chancellor 
Kent,  speaking  in  his  well-known  Commentaries  on 
American  Law  of  the  obligations  contracted  by  States 
under  international  treaties  and  agreements,  rests  upon 
the  following  principle  which  has  been  accepted  without 
controversy  as  a  doctrine  of  international  law: 

"Nations  are  at  liberty  to  use  their  own  resources 
in  such  manner,  and  to  apply  them  to  such  purposes 
as  they  may  deem  best,  provided  they  do  not  violate 
the  perfect  rights  of  other  nations,  nor  endanger  their 
safety,  nor  infringe  the  indispensable  duties  of 
humanity."     (Vol.  I,  p.  25.) 

The  stipulations  of  the  Bryan-Chamorro  treaty  are 
contrary  to  the  principle  of  strict  justice  so  simply  and 
clearly  stated  by  the  North  American  jurist,  for,  although, 
according  to  the  language  of  the  Nicaraguan  Foreign 
Minister,  they  may  tend  towards  the  development  and 
progress  of  Nicaragua  as  a  nation,  they  ignore  and  violate 
the  legitimate  rights  of  joint-ownership,  possessed  by 
El  Salvador  in  the  waters  of  the  Gulf  of  Fonseca,  and 
endanger  her  safety. 


23 

III. 

THE  TREATY  VIOLATES  PRIMORDIAL  INTERESTS 
OF  EL  SALVADOR  AS  A  CENTRAL  AMERICAN 
STATE. 

The  political  constitution  of  El  Salvador  consecrates 
the  principle  that  she  is  a  disintegrated  part  of  the 
RepubUc  of  the  Center  of  America,  and  that,  as  such,  the 
power  remains  inherent  in  her  to  concur  with  all  or  any 
of  the  Central  American  States  in  the  organization  of  a 
common  National  Government. 

This  same  principle  is  declared  in  one  form  or  another  in 
the  constitutions  of  the  other  States  of  Central  America. 
It  is  to  be  found  in  the  constitution  of  Nicaragua,  in 
Article  2,  hereinafter  quoted,  which,  after  providing  that 
the  Public  Powers  may  not  enter  into  pacts  or  treaties 
that  are  opposed  to  the  independence  and  integrity  of  the 
nation,  or  that  in  any  way  affect  its  sovereignty,  takes  out 
of  the  rule  ihe  cases  of  pacts  or  treaties  that  "tend  to  union 
-with  one  or  1.  ore  of  the  Republics  of  Central  America." 

That  same  fundamental  law  of  Nicaragua,  in  Article 
262,  specifies  the  form  in  which  pacts  of  this  last  nature 
must  be  ratified,  and  provides  that  by  virtue  of  such 
signature  and  ratification,  the  constitution  shall  be  thereby 
amended,  even  though  the  other  requisites  prescribed  by 
Title  XXIII,  relating  to  its  amendment,  may  not  have 
been  fulfilled. 

Alienations  of  territory  by  a  Central  American  State 
to  a  foreign  nation  result,  therefore,  in  impairing  the 
transcendental  interest  that  the  vSalvadorean  people  have 
always  held,  and  still  hold,  constantly  in  mind  as  one  of 
their  greatest  and  most  legitimate  aspirations :  that  of  the 
reconstitution,  undiminished,  with  the  brother  peoples,  of 
the  great  country  which  had  been  the  master  of  the 
ancient  Central  American  domain — an  aspiration  toward 


24 

which  the  five  states  are  impelled  by  their  common 
origin,  religion  and  history.  Such  alienations  would 
deeply  wound  that  aspiration  and  detract  from  the 
efficiency  of  the  great  interests  that  the  Salvadorean 
people,  as  a  fractional  part  of  the  Central  American 
people,  hold  to  be  of  first  importance  to  its  national  life 
in  the  future.  The  Nicaraguan  people  and  the  peoples 
of  the  other  three  States  recognize,  maintain  and  value 
those  interests  in  the  same  measure,  as  is  shown  by  the 
multitude  of  historic  facts  and  political  acts  of  their 
independent  lives,  among  which  may  be  mentioned  those 
that  gave  rise  to  the  negotiation  of  the  conventions  that 
were  concluded  at  Washington  in  1907.  One  of  them  was 
the  pact  that  instituted  the  Honorable  Tribunal  before 
which,  through  the  medium  of  the  Government  of  El 
Salvador,  represented  by  this  Foreign  Office,  one  of  those 
peoples  is  now  appearing  in  quest  of  justice:  the  Salvado- 
rean people: 

The  foregoing  considerations  explain  fully  those  put 
forth  in  the  following  point  (IV),  in  discussing  Article  2 
of  the  General  Treaty  of  Peace  and  Amity,  because 
dispositions  or  measures  like  the  alienation  of  the  territory 
of  Central  America  to  a  foreign  nation,  far  from  contribut- 
ing to  the  stability  of  the  States  that  make  up  Central 
America,  would  be  a  factor  exactly  contrary  thereto,  and 
one  that  would  initiate  a  political  regime  wholly  opposed  to 
the  pure  and  noble  aspirations  for  the  liberty  and  progress 
of  its  peoples,  whereby  alone  may  be  affirmed  in  the  future 
their  stabihty  and  the  prestige  with  which  they  should 
surround  themselves  in  the  family  of  nations. 

This  Foreign  Office  thus  makes  of  this  point  a  weighty 
reason  in  support  of  the  complaint  brought  before  this 
Honorable  Court  on  behalf  of  the  Government  of  El 
Salvador;  and  it  rests  in  the  conviction  that  the  inherent 


25 

vice  of  the  Bryan-Chamorro  treaty  will  be  understood  in 
its  true  force  and  effect,  since  the  object  of  its  stipulations 
is  contrary  to  the  Constitutions  of  Nicaragua,  of  El 
Salvador  and  of  the  other  Central  American  States  that 
stand  staunch  in  their  generous  tendencies  and  constant 
eagerness  for  the  reconstruction  of  the  beautiful  nation 
bequeathed  to  us  by  the  illustrious  champions  of  the 
Independence. 

IV. 

THE  TREATY  IS  CONTRARY  TO  ARTICLE  II  OF  THE 
GENERAL  CONVENTION  OF  PEACE  AND  AMITY 
SUBSCRIBED  BY  THE  REPUBLICS  OF  CENTRAL 
AMERICA  AT  WASHINGTON  ON  THE  20TH  OF 
DECEMBER,  1907. 

It  is  unnecessary  to  engage  the  attention  of  this 
Honorable  Court  for  a  lengthy  discussion  of  this  point, 
for  the  reasons  supporting  it  are  sufficiently  clear. 

According  to  the  text  of  Article  2  of  the  General  Con- 
vention of  Peace  and  Amit}^,  the  five  Central  American 
States  agreed  not  to  alter  in  any  form  their  constitutional 
order.  Why?  The  article  itself  suggests  the  answer: 
because  any  alteration  of  that  order  was  conceived  by 
the  delegates  to  be  a  menace  to  the  peace  and  security 
of  each  of  the  States  they  represented  and  of  Central 
America  in  general,  and  to  be  contrary  to  their  established 
policy  and  to  the  prestige  with  which  they  should  sur- 
round themselves.  The  spirit  that  animated  those  dele- 
gates— faithful  interpreters,  as  they  were,  of  the  national 
spirit  of  the  Central  American  States — was  that  of  ward- 
ing off,  for  the  future,  every  danger  that  could  threaten 
the  peace  of  Central  America;  and,  with  those  ideas  in 
mind,  they  could  not  be  oblivious  to  the  greatest  of  all, 
which  was  the  possible  change  of  the  constituted  order 


26 

established  in  each  Repubhc  on  the  most  advanced  prin- 
ciples of  modern  constitutional  science. 

But,  by  constitutional  order,  we  should  not  understand 
solely  the  form  of  government  adopted  by  the  funda- 
mental law  of  a  State,  but  also  all  standards  adopted  by 
constituent  assemblies  representing  peoples,  in  order  that 
the  Public  Powers  might  model  their  acts  of  government 
in  matters  of  primordial  interest  according  to  those 
standards;  and  national  sovereignty,  independence,  and 
integrity  are  matters  that  are  found,  in  this  sense,  ranged 
in  culminating  rank. 

The  constitutional  order  of  Nicaragua  estabUshes,  in 
this  respect,  that  the  Pubhc  Powers  are  inhibited  from 
negotiating  treaties  wherein  the  integrity  of  the  national 
territory  or  sovereignty  is  in  any  way  diminished ;  and  not 
even  for  a  moment,  whether  or  not  there  is  menace  to 
peace — that  is,  to  the  security  and  tranquility  of  Central 
America — can  the  proposition  that  one  of  its  States  may 
adopt  in  this  regard,  another  standard  of  constitutional 
conduct  that  permits  the  cession,  alienation,  or  abandon- 
ment of  its  territory  to  foreign  nations,  be  submitted  to 
judicial  determination. 

V. 

THE  TREATY  COULD  NOT  HAVE  BEEN  VALIDLY 

CONCLUDED. 

Article  2  of  the  Political  Constitution  in  force  in  the 
Repubhc  of  Nicaragua  provides  textually: 

"  Sovereignty  is  one,  inalienable  and  imprescriptible 
and  resides  essentially  in  the  people,  from  whom  the 
functionaries  established  by  the  constitution  derive 
their  powers.  Consequently,  no  pacts  or  treaties 
may  be  concluded  that  are  opposed  to  the  inde- 
pendence or  integrity  of  the  nation  or  which  in  any 


27 

way  affect  its  sovereignty,  save  only  those  that  tend 
toward  unity  with  one  or  more  of  the  Central 
American  Republics." 

The  text  of  this  article  constitutes  a  fundamental  rule 
of  government  which  previous  poUtical  constitutions  of 
that  same  Repubhc  have  adopted  as  the  rule  that  the 
Nicaraguan  people  have  wished  to  see  respected  by  the 
pubUc  power. 

Openly  and  essentially  is  the  text  opposed  to  the 
stipulations  of  the  Bryan-Chamorro  treaty,  whereby  the 
Government  of  Nicaragua  not  only  cedes  to  the  United 
States  a  zone  of  Nicaraguan  soil  for  the  construction  there 
through  of  an  interoceanic  canal,  also  the  Corn  Islands 
in  the  Atlantic  and  a  portion  of  territory  to  be  selected 
by  the  North  American  Government  on  the  littoral  of 
the  Gulf  of  Fonseca,  but,  conformably  with  the  amend- 
ments to  Article  III  of  the  treaty,  made  by  the  United 
States  Senate  in  its  resolution  of  ratification,  restricts 
its  sovereignty  in  fiscal  and  financial  matters. 

Those  stipulations,  therefore,  are  absolutely  invahd, 
and  for  that  reason  cannot  be  consummated  in  the  face 
of  the  principles  of  international  justice  that  control 
cases  of  international  agreements  fundamentally  null, 
especially  when  the  nation  that  has  contracted  with 
another  whose  fundamental  laws  are  opposed  to  the 
subject-matter  of  the  agreement,  had  previous  and  full 
knowledge  of  the  reasons  for  the  invalidity,  and  when, 
moreover,  those  agreements  diminish  by  their  invalid 
stipulations  the  primordial  rights  of  a  third  nation. 


28 

VI. 

DIRECT  MEASURES  FOR  SETTLEMENT  EMPLOYED 

WITHOUT  SUCCESS. 

The  Government  of  El  Salvador  sought  to  discuss  with 
the  Nicaragua!!  Governme!it  its  right  to  oppose  the 
effective  co!!SU!i!i!!atio!!  of  the  Bryai!-Chamorro  treaty, 
ai!d  in  fact,  the  Salvadorean  Foreign  Office  addressed  to 
the  Nicaraguan  Foreign  Office  the  note  of  which  a  copy 
is  hereto  attached  as  Appendix  L.  That  document  was 
placed  in  the  hands  of  His  Excellency  the  Minister  of 
Foreign  Relations  of  that  Republic  on  the  4th  of  May  of 
the  present  year,  by  special  couriers,  Captain  Don  Jose 
A.  Menendez  and  Lieutenant  Don  Santiago  Ch.  J^uregui, 
of  the  Salvadorean  Army. 

The  fact  that  a  considerable  time  has  aheady  passed 
since  that  date  without  any  answer  whatever  to  the  note 
referred  to,  and  that  such  answer  is  not  yet  forthcoming, 
forces  the  Government  of  El  Salvador  into  the  position 
of  being  unable  to  reach  a  settlement  with  the  Govern- 
ment of  Nicaragua  and  justifies  the  former  in  concluding 
that  the  latter  has  rejected  any  settlement  of  the  matter 
by  the  respective  foreign  offices;  and  that,  therefore,  the 
condition  is  fulfilled— which,  however,  El  Salvador  does  not 
consider  indispensable  in  the  premises — that  is  contained 
in  the  final  provision  of  Article  I  of  the  convention  for 
the  estabHshment  of  this  Honorable  Court,  subscribed 
at  Washington  on  the  20th  of  December,  1907. 

VII. 

PETITION. 

For  the  reasons  above  set  forth,  the  Salvadorean  Foreign 
Office,  in  the  name  and  representation  of  the  Government 
of  El  Salvador,  prays  that  the  Government  of  Nicaragua 
be  enjoined  to  abstain  from  fulfilling  the  Bryan-Chamorro 


29 

treaty,  subscribed  at  Washington  the  fifth  day  of  August, 
nineteen  hundred  and  fourteen,  and,  therefore,  with 
reiterated  expressions  of  its  consideration,  petitions  the 
Honorable,  the  Central  American  Court  of  Justice: 

First. — That  the  complaint  hereby  interposed  be 
admitted  and  considered,  together  with  the  Appendices 
hereto  attached. 

Second. — That,  in  conformity  with  the  text  and  spirit  of 
Article  XVIII  of  the  Central  American  convention 
concluded  at  Washington,  herein  last  above  cited,  the 
appropriate  interlocutory  decree  may  issue  fixing  the  legal 
situation  to  be  maintained  by  the  Government  of  Nica- 
ragua in  the  matter  which  is  the  subject  of  this  complaint, 
in  order  that  the  things  here  in  litigation  may  be  preserved 
in  [the  status  in  which  they  were  found  before  the  con- 
clusion and  ratification  of  the  Bryan-Chamorro  treaty. 

Third. — That  by  the  final  decision  the  Government  of 
Nicaragua  be  enjoined  to  abstain  from  fulfilling  the  afore- 
said Bryan-Chamorro  treaty,  and. 

Fourth. — That  this  Honorable  Court  will  grant  such 
other  and  further  relief  as  may  seem  to  it  just  and  proper. 


VIII. 
SPECIFICATION  OF  APPENDICES. 

A.  Copy  of  protest  presented  by  the  Salvadorean 
Foreign  Office,  through  the  medium  of  the  Legation  at 
Washington,  to  the  Department  of  State  of  the  United 
States  on  the  21st  of  October,  1913. 

B.  Reply  of  the  Honorable  W.  J.  Bryan,  Secretary  of 
State,  relating  to  that  protest. 

C.  Copy  of  the  Salvadorean  Legation's  rejoinder. 

Ch.  Copy  of  the  note  of  July  8,  19 14,  addressed  by  the 
Salvadorean  Legation  in  the  same  matter  to  the  American 
Department  of  State. 

D.  Reply  of  that  State  Department,  dated  July  16, 
1914. 

E.  Copy  of  the  note  addressed  on  the  21st  of  July,  19 14, 
to  the  said  Department  of  State  referring  to  its  answer  of 
the  1 6th  of  the  same  month. 

F.  Copy  of  the  Salvadorean  Legation's  note  of  December 
21,  1 9 14,  to  the  Salvadorean  Foreign  Office,  transmitting 
the  Bryan-Chamorro  treaty,  which  had  been  handed  to  it 
by  the  Secretary  of  State  of  the  United  States. 

G.  Note  of  Honorable  W.  J.  Bryan  to  the  Salvadorean 
Legation,  transmitting  copy  of  the  treaty  above  mentioned. 

H.  The  Bryan-Chamorro  treaty. 

I.  Note  of  protest  relating  to  said  treaty,  addressed  on 
the  9th  of  February,  through  the  medium  of  the  Salva- 
dorean Legation,  to  the  Department  of  State. 

J.  Note  of  the  United  States  Legation,  dated  the  19th 
of  February,  1916,  wherein,  under  instructions  from  the 
Department  of  State,  the  Minister  informs  the  Salvado- 
rean Foreign  Office  that  the  said  Bryan-Chamorro  treaty 
had  been  ratified,  with  amendments  by  the  United  States 
Senate. 

(30) 


31 

K.  Copy  of  the  Salvadorean  Foreign  Office's  reply, 
dated  March  3,  19 16,  wherein  it  protests  against  the 
ratification  of  the  said  treaty. 

L.  Copy  of  the  note  addressed  by  the  Salvadorean 
Foreign  Office  to  the  Nicaraguan  Foreign  Office  on  the 
14th  of  April,  191 6,  and  delivered  by  the  Foreign  Office 
couriers,  Captain  Jose  A.  Menendez  and  Lieutenant 
Santiago  Ch.  Jauregui. 

LI.  Copy  of  the  telegrams  addressed  from  Managua  to 
the  Salvadorean  Foreign  Office  on  the  4th  of  May,  1916, 
by  His  Excellency  the  Minister  of  Foreign  Relations  of 
Nicaragua  and  by  the  Foreign  Office  courier,  Captain 
J.  A.  Menendez. 

M.  Copy  of  certain  paragraphs  of  the  report  for  the 
year  19 14  presented  to  the  National  Congress  of  Nicaragua 
by  His  Excellency  the  Minister  of  Foreign  Relations  of 
that  Republic. 

N.  Copy  of  certain  articles  of  the  Law  of  Navigation 
and  Marine  in  force  in  El  Salvador. 

O.  Technical  report  of  Civil  Engineers  Don  Santiago 
I.  Barbarena  and  Don  Jose  E.  Alcaine,  relating  to  the 
Gulf  of  Fonseca. 

P.  Map  of  the  Gulf  of  Fonseca. 

National  Palace,  Ministry  op  Foreign  Relations, 
San  Salvador,  August  14,  igi6. 

F.  MartInez  Suarez. 


ADDITION  TO  THE  FOREGOING 
COMPLAINT. 

The  Honorable, 

The  Central  American  Court  of  Justice: 

At  the  last  hour,  after  the  signing  of  the  complaint  of 
the  fourteenth  instant,  the  answer  of  the  Nicaraguan 
Foreign  Office  to  the  note  addressed  thereto  by  the 
Salvadorean  Department  of  Foreign  Relations  on  the 
14th  of  April  last  and  mentioned  in  Point  VI  ("Direct 
Measures  for  Settlement  Employed  without  Success")  of 
said  complaint,  has  been  received. 

In  that  answer  the  Nicaraguan  Foreign  Office, 
having  recited  the  bases  on  which  the  Salvadorean 
Government  relies  in  its  opposition  to  the  Bryan-Chamorro 
treaty,  and  after  setting  forth,  in  its  turn,  the  bases  con- 
sidered by  the  Nicaraguan  Government  as  warranting  its 
insistence,  over  the  protests  of  El  Salvador,  upon  carrying 
out  the  fulfilment  of  that  treaty,  concludes  textually  as 
follows : 

"In  conclusion,  with  Your  Excellency's  permission, 
I  will  state  that  in  consonance  with  the  solemn 
declaration  contained  in  the  Note  itself  that  the 
Government  of  El  Salvador  will  avail  itself  of  every 
means  afforded  to  it  by  justice,  law  and  existing  inter- 
national agreements  to  secure  invalidation  of  that 
agreement,  my  Government,  in  its  turn,  expresses  to 
Your  Excellency's  Government  its  unalterable  pur- 
pose to  avail  itself  also  of  all  means  afforded  to  it  by 
justice  and  law  to  maintain  inviolate  the  vaUdity  of 
that  diplomatic  agreement." 

From  the  paragraph  above  quoted,  it  will  be  clearly 
seen  that  the  Nicaraguan  Department  of  Foreign  Relations 
rejects  any  settlement  between  the  Foreign  Offices  tending 
to  the  non-execution  of  the  Bryan-Chamorro  treaty. 


33 

The  Government  of  El  Salvador,  therefore,  considers 
that  the  measures  indicated  in  the  final  part  of  Article  I 
of  the  Convention  for  the  Establishment  of  a  Central 
American  Court  of  Justice  subscribed  at  Washington  on 
the  2oth  of  December,  1907,  have  been  exhausted;  and, 
consequently,  prays  this  Honorable  Court  to  take  action 
upon  its  complaint  and  to  accept  this  communication  as  a 
part  thereof  and  as  modifying,  on  the  point  to  which  it 
relates,  what  is  set  forth  in  that  complaint  in  Point  VI 
("Direct  Measures  for  Settlement  Employed  without 
Success"). 

National  PaIvAce,  Ministry  of  Foreign  Relations, 
San  Salvador,  August  15,  igi6. 

F.  Martinez  Suarez. 


APPENDICES. 


APPENDIX  A. 

Legation  of  El  Salvador 
In  the  United  States  of  America 

Washington,  D.  C, 

October  21,  IQ13. 
The  Honorable  William  J.  Bryan, 

Secretary  of  State  of  the  United  States  of  America, 
Washington. 
Mr.  Secretary: 

Information  has  reached  my  Government  that  the 
Government  of  Nicaragua  has  entered  into  a  treaty  with 
the  United  States  for  the  construction  of  an  interoceanic 
canal  by  way  of  the  San  Juan  River  and  Lake  Nicaragua, 
and  that,  in  that  pact,  the  United  States  is  granted, 
among  other  concessions,  a  lease  for  ninety-nine  years, 
renewable  at  the  will  of  the  latter,  for  a  naval  station  at  a 
point  inside  the  Gulf  of  Fonseca  on  the  Nicaraguan  coast. 

The  geographical  and  legal  situation  of  the  Gulf  or  Bay 
of  Fonseca  is  of  such  a  nature  that  a  lease  of  any  part 
thereof  must  of  necessity  affect  all  the  other  parts. 

From  the  time  when,  in  the  beginning  of  the  sixteenth 
century,  the  Spanish  discoverers  who  conquered  and 
occupied  Central  America  came  upon  the  considerable 
expanse  of  water  that  indents  the  coast  from  Amapala 
Point  in  our  territory  to  Cosigiiina  Point  in  Nicaragua, 
the  bay  or  gulf  which  since  then  has  borne  the  name  of 
Fonseca,  in  honor  of  the  President  of  the  Council  of  the 
Indies,  who  governed  those  countries  from  Spain  as  the 

(34) 


I 


35 

representative  of  the  Spanish  Crown,  has  never  ceased 
for  a  single  day  to  belong  to  the  three  riparian  countries 
of  El  Salvador,  Honduras  and  Nicaragua,  to  whose 
sovereignty  and  jurisdiction  also  the  said  Gulf  of  Fonseca 
has  always  belonged,  and  still  belongs. 

During  the  three  centuries  of  Spanish  dominion  in  that 
part  of  the  continent  the  three  countries  mentioned 
possessed  the  bay  referred  to  without  opposition  or 
question,  and  that  dominion  has  been  confirmed  by  the 
spirited  defense  made  on  more  than  one  occasion  by  the 
peoples  of  El  Salvador,  Honduras  and  Nicaragua  against 
the  hordes  of  fihbusters  that  ravaged  the  Central  American 
coasts  during  those  centuries  and  even  penetrated  into  the 
heart  of  the  Gulf  in  an  effort  to  establish  themselves  on 
Tigre  Island. 

These  historic  facts,  and  many  others  that  need  not 
be  recorded  here,  suffice  to  demonstrate  that  the  Gulf  of 
Fonseca  belongs  unquestionably  to  the  category  of  bays 
classed  as  "historic"  by  international  law,  and  by  virtue 
of  that  classification  are  considered  as  subject  incontes- 
tably  to  the  exclusive  ownership  and  sovereignty  of  the 
riparian  States,  whatever  may  be  the  extent  of  their 
penetration  into  the  land  and  the  width  of  their  entrances, 
and  even  though  the  latter  should  exceed  the  six  marine 
miles  that  international  law  recognizes  for  territorial  bays ; 
provided,  that,  as  is  the  case  with  the  Bay  of  Fonseca, 
the  riparian  countries  shall  have  affirmed,  and  continued 
to  affirm,  their  sovereignty  under  circumstances  that 
depend  upon  geographical  configuration,  immemorial  use, 
and,  above  all,  on  their  proper  defense. 

So,  then,  the  Bay  or  Gulf  of  Fonseca  is  historic  in 
character  in  the  same  way,  and  under  the  same  principle, 
as  Chesapeake  and  Delaware  Bays,  in  the  United  States, 
and  the  Bays  of  Conception  and  Miramichi,  in  British 


36 

America,  have  been  recognized  to  be.  The  right  of  owner- 
ship enjoyed  by  the  United  States  and  Great  Britain 
in  those  bays  has  been  recognized  and  confirmed  in  treaties 
and  arbitral  awards  as  an  incontestable  title  of  ownership 
and  sovereignty. 

That  same  right,  which  the  Spanish  Government 
enjoyed  from  time  immemorial  over  the  waters  embraced 
inter  fauces  terrae- — whether  territorial  or  not — that  form 
the  Gulf  of  Fonseca,  passed,  by  the  fact  of  the  Inde- 
pendence, to  the  Federal  Republic  of  Central  America, 
which  included  that  gulf  within  its  maritime  limits  as 
the  successor  of  all  the  rights  of  ownership  and  sovereignty 
that  once  belonged  to  the  Crown  of  Castile  in  connection 
with  its  territory. 

And  during  the  period  in  which  the  Federal  Govern- 
ment of  Central  America  was  in  the  exercise  of  its  powers, 
the  possession  and  ownership  of  the  Gulf  of  Fonseca  were 
confirmed  by  many  legislative  acts  and  acts  of  national 
jurisdiction  under  which  laws  relating  to  ports,  police, 
and  other  matters  were  enacted. 

When,  in  1839,  the  federal  bond  between  the  five  States 
that  formed  the  federation  was  broken,  the  States  of 
El  Salvador,  Honduras,  and  Nicaragua  survived  as  the 
legitimate  proprietors  and  sovereigns  in  common  over  the 
Gulf  of  Fonseca,  and  they  so  possess  it  to  this  day;  for 
up  to  the  present  there  has  never  been  any  pact  or  agree- 
ment that  has  put  an  end  to  the  status  of  indivisibility 
and  community  which  the  three  riparian  States  found  to 
be  preexisting  when  they  constituted  themselves  as  free 
and  independent  nations;  although  on  several  occasions 
the  attempt  was  made,  as  happened  on  the  occasion  of 
the  unperfected  treaty  of  limits  negotiated  on  the  loth 
of  April,  1884,  between  El  Salvador  and  Honduras, 
which  for  the  purpose  of  putting  an  end  to  the  community, 


37 

provided  in  Article  2  that  "the  maritime  Hne  between 
El  Salvador  and  Honduras  begins  in  the  Pacific  and  divides 
equally,  in  the  Gulf  of  Fonseca,  the  distance  between  the 
Islands  of  Meanguera,  Conchagiiita,  Martin  Perez,  and 
Punta  Zacate,  in  El  Salvador,  and  the  Islands  of  Tigre, 
Zacate  Grande,  Inglesa,  and  Exposicion,  in  Honduras,  and 
terminates  at  the  mount  of  the  Goascoran."  That  pact 
never  went  into  effect  because  it  was  not  ratified  by  the 
Honduran  Congress,  and,  therefore,  left  in  force  the 
original  status  of  indivisibility  and  community. 

For  the  foregoing  reasons  and  antecedents  the  Govern- 
ment of  the  United  States  must  be  convinced  of  the  right 
residing  in  my  Government  to  consider  itself  to  be  affected 
by  the  project  of  leasing  a  part  of  the  Gulf  of  Fonseca 
without  previous  consultation  with,  and  the  consent  of, 
the  other  proprietory  and  co-owner  States,  even  though 
the  object  of  the  lease  is  located  exclusively  on  the  coast 
of  Nicaragua. 

Besides  these  considerations  there  are  others  even 
more  weighty  that  justify  El  Salvador  and  Honduras  in 
holding  themselves  to  be  injured  by  the  promised  aliena- 
tion of  a  part  of  the  Gulf  of  Fonseca  provided  for  in  the 
clauses  of  a  lease  for  years. 

It  is  a  principle  of  international  law  founded  on  uni- 
versal equity,  that  a  nation  must  refrain  from  those  acts 
which  by  their  nature  may  compromise  the  existence  and 
security  of  other  nations.  By  virtue  of  this  principle, 
nations  are  given  the  right  to  appropriate  to  themselves 
the  gulfs  and  bays  that  are  naturally  defended  by  islands, 
sand  bankb  or  rocks,  or  by  the  cross  fire  of  cannon  sta- 
tioned at  the  extremes  of  their  entrance,  and  even  to 
prohibit  the  entrance  into  such  gulfs  and  bays. 

Under  the  same  rule  it  has  been  agreed  that  bays  that 
possess  a  width  at  their  entrances  as  great  as  six  marine 


1159^0 


38 

miles,  shall,  in  matters  pertaining  to  police  power, 
security,  and  to  the  exercise  of  fishing  privileges  (up  to 
ten  miles) ,  be  held  to  be  territorial  bays  incorporated  as  a 
part  of  the  national  territory  and  the  three  mile  limit 
from  the  coasts  is  estimated  therein,  towards  the  open 
sea,  from  an  imaginary  straight  line  cutting  across  the 
bays  from  cape  to  cape. 

These  principles  should  reasonably  apply  to  the  gulfs 
or  bays  that  belong  in  common  to  various  States,  irrespec- 
tive of  the  distance  to  which  they  indent  the  land,  and 
whatever  may  be  their  geographical  configuration  in 
relation  to  the  marginal  belt  of  territorial  waters  that 
correspond  to  each  of  the  riparian  States. 

The  foregoing  doctrines  have  been  declared  and  recog- 
nized by  Great  Britain  and  the  United  States  in  the  arbi- 
tral award  rendered  at  The  Hague  on  the  yth  of  Septem- 
ber, 1910,  in  the  fisheries  question.    The  award  holds: 

"It  has  been  further  contended  by  the  United 
States  that  the  renunciation  applies  only  to  bays 
six  miles  or  less  in  width  'inter  fauces  terrcB,'  those 
bays  only  being  territorial  bays  because  the  three- 
mile  rule  is,  as  shown  by  this  treaty,  a  principle  of 
international  law  applicable  to  coasts  and  should 
be  strictly  and  systematically  applied  to  bays. 

"But  the  Tribunal  is  unable  to  agree  with  this 
contention : 

"(a)  Because  admittedly  the  geographical  charac- 
ter of  a  bay  contains  conditions  which  concern  the 
interests  of  the  territorial  sovereign  to  a  more  intimate 
and  important  extent  than  do  those  connected  with 
the  open  coast.  Thus  conditions  of  national  and 
territorial  integrity,  of  defense,  of  commerce  and  of 
industry  are  all  vitally  concerned  with  the  control  of 
the  bays  penetrating  the  national  coast  line." 

The  award  itself   cites  the  convention   concluded,   in 
1846,  between  Great  Britain  and  the  United  States,  where- 


39 

in  the  two  countries  put  an  end  to  the  status  of  com- 
munity and  co-ownership  in  the  waters  of  the  Strait  of 
Fuca  and  attributed  reciprocally  and  exclusively  to  each 
other  the  ownership  of  those  waters  to  a  distance  as  great 
as  seventeen  miles  from  their  respective  shores. 

The  existence  of  various  islands  belonging  to  El  Salvador 
and  Honduras  inside  the  Gulf  of  Fonseca  constitutes 
another  of  the  reasons  that  give  vigor  to  the  legal  doctrines 
here  set  forth  in  support  of  the  rights  of  El  Salvador  which 
my  Government  holds  to  have  been  violated  by  the 
concession  sought  to  be  given  to  the  United  States  for  the 

cr 

estabhshment  of  a  naval  station,  which  concession  would 
not  only  necessarily  restrict  those  rights,  but  would  even 
compromise  the  most  valuable  interests  of  El  Salvador  and 
Honduras. 

It  must  be  noted  that  Nicaragua's  interests  and  rights 
which  she  has  ceded  to  the  United  States  possess  a  value 
far  inferior  to  those  of  Honduras  and  El  Salvador. 

In  fact,  in  the  Gulf  of  Fonseca,  the  waters  of  which  are 
common  to  the  three  States,  Nicaragua  possesses  no  port 
of  any  importance,  and  the  ports  of  Corinto  and  San 
Juan  del  Sur  would  be  without  the  zone  of  influence  cor- 
responding to  the  naval  base  which  it  is  proposed  to 
establish  inside  the  Gulf.  This  influence,  and  its  conse- 
quent predominance,  would  most  forcefully  aflfect  the 
exercise  of  fiscal  and  police  powers  by  Honduras  and  El 
Salvador — powers  of  high  importance  to  those  countries, 
which  would  be  permanently  subordinated  to  police  and 
security  measures  which  the  United  States  would  adopt  as 
of  course  for  the  preservation  and  safeguarding  of  her 
naval  base. 

And,  in  case  of  war  between  the  United  States  and 
another  maritime  power,  the  three  countries  that  own  the 
Gulf  would  necessarily  find  themselves  involved  in  serious 


40 

dangers  and  the  gravest  difficulties  in  the  effort  to  preserve 
and  defend  their  neutraHty;  their  waters,  furthermore, 
within  the  Gulf,  would  be  converted  into  a  belligerant 
camp  and  surrounded  by  all  the  calamities  incident  to 
armed  strife. 

Those  risks  and  difficulties  increase  in  their  menace 
when  it  is  considered  that  El  Salvador  and  Honduras 
possess  inside  the  Gulf  two  important  ports  of  con- 
siderable size.  La  Uni6n  and  Amapala ;  whereas  Nicaragua, 
as  has  been  said,  has  no  port  in  the  Bay.  Through  those 
ports  the  two  States  named  turn  over  a  great  part  of  their 
interior  riches,  and  import  merchandise  in  great  quantity; 
so  that  it  is  no  exaggeration  to  say  that  Nicaragua,  by 
ceding  the  naval  station,  enters  into  an  agreement  with 
the  United  States  that  affects,  rather  than  her  own  patri- 
mony, the  vital  interests  of  El  Salvador  and  Honduras, 
who  cannot,  and  should  not,  consent  to  that  unauthorized 
aUenation  of  their  rights. 

On  the  other  hand  the  constitutions  of  the  Republics  of 
Central  America,  and  especially  those  of  Honduras,  El 
Salvador  and  Nicaragua,  have  consecrated  the  principle 
that  those  Republics  are  disintegrated  parts  of  the  old 
Federation  of  Central  America,  and,  therefore,  recognize 
the  positive  duty  to  contribute  to  the  reestablisment  of  the 
Central  American  nationality. 

That  fundamental  duty  which  those  States  must 
recognize  and  respect,  estops  them,  in  a  certain  manner 
and  in  a  certain  measure,  from  diminishing  the  integrity 
of  the  Central  American  territory  without  the  concurrence 
of  all  of  them,  especially  territory  located  at  points  in  which 
two  or  more  States  possess  common  rights  and  interests. 

For  the  purposes  of  such  alienation,  it  is  necessary  to 
obtain,  in  addition  to  the  collective  consent,  the  authoriza- 
tion of  a  plebiscite  of  the  peoples  whose  territorial  and 


41 

jurisdictional  rights  would  be  diminished  by  the  projected 
alienation. 

By  \'irtue  of  the  foregoing  bases  and  reasons,  my 
Government  has  given  me  special  instructions  to  present 
to  Your  Excellency's  Government  its  formal  protest,  on 
the  ground  that  its  rights  and  interests  would  be  dimin- 
ished, or  affected,  if  the  concession  for  the  establishment 
of  a  naval  station  at  any  point  in  the  Gulf  of  Fonseca 
should  be  carried  forward,  even  though  only  the  small 
part  of  the  coast  possessed  by  Nicaragua  on  the  shore  of 
the  gulf  be  involved. 

By  reason  of  the  joint  ownership  which  the  status  of 
indivisibleness  establishes  over  the  jurisdictional  and 
sovereign  rights  exercised  by  the  three  riparian  States  over 
the  Gulf  of  Fonseca,  it  has  been  necessary,  in  the  course  of 
this  statem-cnt,  to  mention  conjointly  the  interests  and 
rights  of  El  Salvador  and  Honduras  in  juxtaposition  to 
those  of  Nicaragua;  but  it  will  naturally  be  understood 
that  the  present  protest  is  limited  exclusively  to  the 
interests  and  rights  that  belong  to  El  Salvador  in  the 
aforementioned  Bay  of  Fonseca. 

I  beg  that  Your  Excellency  will  accept  the  assurances 
of  my  most  distinguished  consideration. 

Francisco  Duenas. 


APPENDIX  B. 

Department  of  State, 

Washington,  February  i8,  1914. 

* 

Senor  Dr.  Don  Francisco  Duenas, 

Minister  oj  Salvador. 

Sir: 

The  Department  has  received  and  has  maturely  con- 
sidered the  protest  which  you  were  so  good  as  to  address 
to  it  on  the  2  ist  of  October  last  for  the  purpose  of  reserving 
any  rights  and  interests  of  your  Government  which  might 
be  affected  or  impaired  by  the  grant  to  the  United  States 
by  the  Repubhc  of  Nicaragua,  within  the  latter's  jurisdic- 
tion of  the  right  to  establish  a  naval  station  on  the  Gulf  of 
Fonseca. 

In  your  protest  the  position  is  taken  that  the  Gulf  of 
Fonseca  is  a  territorial  bay  whose  waters  are  within  the 
jurisdiction  of  the  bordering  States.  This  position  the 
Department  is  not  disposed  to  controvert.  Your  protest, 
however,  further  claims  that,  after  the  dissolution  of  the 
Repubhc  of  Central  America,  the  States  of  Salvador, 
Honduras  and  Nicaragua  remained  "the  joint  lawful 
owners  and  sovereigns  of  the  Gulf  of  Fonseca  as  they  now 
hold  it,"  no  treaty  or  agreement  having  been  made  to 
bring  to  an  end  the  condition  of  "undivided  and  joint 
ownership"  which  previously  existed.  The  grounds  of 
this  claim  are  not  evident,  nor  do  they  appear  to  have  been 
admitted  by  the  bordering  States,  namely,  Salvador, 
Honduras  and  Nicaragua.  From  the  fact  that  the  Repub- 
hc of  Nicaragua  deems  itself  to  have  the  right  to  make  the 
concession  to  which  the  protest  relates  it  is  necessarily 
to  be  inferred  that  that  Government  regards  the  jurisdic- 
tion not  as  belonging  to  them  in  undivided  and  joint 
ownership.  The  Department  understands  that  this  has 
been  and  is  the  view  of  the  Government  of  Honduras. 

(42) 


43 

It  would  also  appear  to  have  been  heretofore  the  view  of 
the  Government  of  Salvador,  as  is  shown  by  the  treaty 
between  Salvador  and  Honduras  of  April  lo,  1884,  by 
which  the  boundary  between  Salvador  and  Honduras 
was  extended  across  the  Gulf  of  Fonseca.  This  treaty, 
it  is  true,  never  became  effective  for  the  reason  that  the 
Congress  of  Honduras  failed  to  approve  it ;  but  it  is  under- 
stood that  this  failm-e  of  approval  was  not  due  to  any 
supposition  that  it  involved  the  division  of  a  proprietor- 
ship which  was  previously  undivided  and  joint.  On  the 
contrary,  the  treaty  seems  to  have  presupposed  that  each 
of  the  three  bordering  States  claimed  as  its  own  a  certain 
part  of  the  Gulf  and  asserted  jurisdiction  only  over  such 
part.  The  Department  is  advised  that  this  is  the  condi- 
tion of  things  which  exists  today. 

The  protest  makes  a  further  claim  to  the  effect  that  the 
establishment  by  the  United  States  of  a  naval  station  in 
the  Gulf  of  Fonseca  would  radically  alter  the  political 
situation  in  that  quarter  in  such  manner  as  to  put  in 
jeopardy  important  interests  of  Salvador  and  Honduras. 
In  this  relation  the  protest  points  out  that  the  interests  of 
Nicaragua  in  the  Gulf  are  much  smaller  than  those  of 
Honduras  and  Salvador,  and  that,  while  Nicaragua  has  no 
port  of  entry  in  the  Gulf,  Salvador  and  Honduras  have 
therein  two  such  ports,  La  Union  and  Amapala,  through 
which  a  large  part  of  the  commerce  of  the  two  countries  is 
conducted. 

The  Government  of  tne  United  States  desires  to  give 
the  most  respectful  consideration  to  those  representations, 
but  is  obliged  to  think  that  they  rest  upon  apprehensions 
which  are  hardly  justified  by  the  circumstances.  In 
estabhshing  a  naval  station  in  the  Gulf  of  Fonseca  the 
Government  of  the  United  States  would  have  at  heart  the 
interests  of  Central  America  no  less  than  its  own.  Par- 
ticularly would  it  have  in  view  the  safeguarding  of  the 


44 

local  sovereignty ;  and  to  this  end  this  Government  would 
be  prepared  to  consider  a  concession  either  from  Salvador 
or  from  Honduras,  or  from  both  of  them,  similar  to  that 
which  Nicaragua  has  indicated  a  wilUngness  to  make. 

With  reference  to  the  objection  that  the  proposed  con- 
cession by  Nicaragua  would  form  an  obstacle  to  the 
restoration  of  the  Union  of  the  States  of  Central  America, 
the  Department  cherishes  the  hope  that  your  Government 
will,  upon  further  consideration  of  all  the  circumstances, 
be  inclined  to  view  the  subject  in  a  diiferent  light.  The 
concession  would  not  give  the  United  States  any  right  or 
interest  in  the  political  affairs  of  Central  America  beyond 
that  which  now  exists  and  would  in  no  respect  form  an 
obstacle  to  the  political  union  of  the  Central  American 
States  in  case  they  should  at  any  time  wish  to  take  such  a 
step. 

The  protest  finally  suggests  that  the  concession  of  a 
naval  station  to  the  United  States  in  the  Gulf  of  Fonseca 
would  require  the  plebiscitary  authorization  of  the  peoples 
whose  territorial  and  jurisdictional  rights  would  be 
affected.  This  objection  seems  of  necessity  to  rest 
primarily  upon  the  claim  now  made  that  the  waters  of  the 
Gulf  of  Fonseca  belong  to  the  bordering  States  in  undivided 
and  joint  ownership,  for,  on  any  other  supposition,  the 
question  of  a  plebiscite  could  hardly  be  raised  by  Salvador 
in  respect  of  a  concession  proposed  to  be  made  by  the 
Republic  of  Nicaragua  in  waters  which  the  Nicaraguan 
Government  evidently  regards  as  being  within  the  exclu- 
sive jurisdiction  of  Nicaragua.  The  claim  of  undivided 
and  joint  ownership  having  heretofore  been  discussed,  it 
is  hoped  that  the  Government  of  Salvador  will,  for  the 
reason  above  set  forth,  concur  with  this  Government  in  the 
view  that  the  claim  does  not  rest  upon  soUd  foundation. 

Accept,   Sir,    the   renewed   assurances   of   my   highest 

consideration. 

William  Jennings  Bryan. 


APPENDIX  C. 

Legation  of  Kiv  Sai^vador  in  Washington, 

March  ii,  191 4. 
His  Excellency,  William  J.  Bryan, 

Secretary  of  State, 

Washington. 
Your  Excellency: 

Under  special  instructions  from  my  Government,  I 
have  the  honor  to  reply  to  Your  Excellency's  esteemed 
note  of  the  1 8th  ultimo,  wherein  you  were  good  enough  to 
set  forth  the  considerations  that  moved  the  Department 
of  State  to  decide  that  there  was  no  soHd  basis  for  the 
protest  brought  to  its  attention  on  the  21st  of  October, 
1913,  for  the  purpose  of  safeguarding  such  rights  or 
interests  of  the  RepubHc  of  El  Salvador  as  might  be 
affected  or  diminished  if  the  concession  should  be  made 
effective  that  was  granted  to  Your  Excellency's  Govern- 
ment by  the  Nicaraguan  Government  for  the  establish- 
ment of  a  naval  station  in  the  Gulf  of  Fonseca. 

Yotu-  Excellency  states  that  the  Department  is  not 
disposed  to  dispute  the  point  that  the  Gulf  of  Fonseca  is  a 
territorial  bay  the  waters  of  which  are  embraced  within 
the  jurisdiction  of  the  adjacent  states;  the  position  thus 
taken  by  Your  Excellency  is  well  understood  by  my 
Government  because  it  deals  with  a  fact  which  is  the 
essential  basis  of  the  protest  it  holds  to  be  incontro- 
vertible. 

As  Your  Excellency,  however,  confines  yourself  to 
declaring  unsound  the  fundaments  on  which  my  Govern- 
ment relies  for  support  in  its  claim  that  the  Gulf  of  Fon- 
seca belongs  in  common — as  it  is  now  possessed  by  them — 
to  the  States  of  El  Salvador,  Honduras  and  Nicaragua, 

(45) 


46 

without  favoring  me  with  your  reasons,  and  as,  on  the 
other  hand,  you  do  not  cite  any  pact  or  agreement  that 
has  put  an  end  to  the  status  of  indivisibleness  and  com- 
munity, the  considerations  set  forth  in  my  above-men- 
tioned protest  in  support  of  that  point  still  stand.  But, 
as  Your  Excellency  thinks,  furthermore,  that  those 
fundaments  do  not  appear  to  have  been  admitted  by  the 
boundary  States,  I  beg  leave  to  inform  you  that  the  terms 
of  the  Treaty  of  April  lo,  1884,  to  which  I  refer  in  my 
protest,  are  perfectly  clear  in  the  sense  that  the  purpose 
of  the  signatory  Governments  was  to  put  an  end  to  the 
community  in  the  Gulf  of  Fonseca,  and  that  from  those 
terms  it  cannot  be  deduced,  as  you  appear  to  have  done, 
that  the  High  Contracting  Parties  could  have  supposed, 
in  signing  that  treaty,  that  each  of  the  boundary  States 
claimed  as  its  own  that  certain  part  of  the  Gulf  over  which 
it  exercised  jurisdiction. 

That  treaty  never  reached  the  category  of  a  law,  and 
the  fact  that  it  did  not  is  one  of  the  best  proofs  of  the 
recognition  by  the  contracting  States  of  the  communal  or 
undivided  possession  of  the  Gulf  of  Fonseca. 

Your  Excellency  is  pleased  to  indicate  to  me  that  your 
Government  would  be  prepared  to  consider  a  concession 
from  El  Salvador  similar  to  that  which  Nicaragua  has 
voluntarily  offered.  In  that  regard,  Sir,  I  am  con- 
strained to  state  that  Article  XXXVIII  of  our  Funda- 
mental Charter  is  conclusive  in  prohibiting  the  constituted 
powers  from  signing  or  approving  treaties  or  conventions 
that  would  in  any  manner  diminish  the  integrity  of  the 
national  territory  or  sovereignty. 

The  fact  that  the  Government  of  the  United  States  has 
always  been  so  just  and  so  universally  recognized  for  its 
strict  respect  for  its  institutions,  permits  me  to  hope, 
with  the  fullest  confidence,   that  Your  Excellency  will 


47 

justly  appreciate  that  my  Government,  too,  maintains 
perfect  observance  of  its  constitutional  precepts. 

The  Salvadorean  people  as  well  as  my  Government  are 
sincerely  devoted  to  the  idea  of  the  unification  of  Central 
America,  and  appreciate  at  its  just  value  Your  Excellency's 
declaration  that  under  no  consideration  would  the  United 
States  place  any  obstacles  in  the  way  of  the  political  union 
of  the  Central  American  States. 

I  beUeve  that  I  have  demonstrated  that  the  waters  of 
the  Gulf  of  Fonseca  belong  indivisibly  and  communally 
to  the  riparian  Republics,  and,  consequently,  my  Govern- 
ment insists  that  the  concession  for  the  estabUshment  of 
a  naval  station  in  that  Gulf  would  require  the  authoriza- 
tion of  a  plebiscite  of  the  peoples  whose  territorial  and 
jurisdictional  rights  might  be  affected. 

I  cannot  conclude  this  note,  Your  Excellency,  without 
confirming  the  ideas  set  forth  in  my  aforesaid  protest  and 
without  expressing  the  fact  that  my  Government  is 
confident  that  you  will  accord  it  justice. 

Reiterating  to  Your  Excellency  assurances  of  my 
highest  consideration. 

Francisco  Duenas. 


APPENDIX  CH. 

Legation  of  El  Salvador  in  Washington, 

Washington,  July  8,  1914. 
His  Excellency,  William  J.  Bryan, 
Secretary  of  State, 

Washington. 
Your  Excellency: 

I  have  the  honor  to  bring  to  Your  Excellency's  dis- 
tinguished attention  the  fact  that  my  Government,  on 
being  informed  that  the  project  of  a  treaty  with  Nicaragua 
now  pending  ratification  in  the  Senate,  contains  a  clause 
similar  to  the  so-called  Piatt  Amendment,  which  estab- 
lishes a  protectorate  on  the  part  of  the  United  States 
over  that  Central  American  Republic,  has  instructed  me 
to  present  to  Your  Excellency,  with  all  due  respect,  a 
formal  protest  against  that  clause. 

My  Government  is  of  opinion  that,  in  view  of  the 
pecuUar  bonds  that  have  always  united  the  States  of 
Central  America,  the  partial  loss  or  destruction  of 
Nicaraguan  autonomy  would  seriously  affect  the  autonomy 
of  El  Salvador. 

The  projected  protectorate  would  nulUfy  the  conven- 
tions signed  at  the  Conference  of  Washington  (the  Cen- 
tral American  Conference  at  Washington  of  1907),  since 
those  treaties  were  negotiated  for  the  purpose  of  bringing 
into  closer  relations  the  Central  American  States  for  the 
furtherance  of  peace  and  the  development  of  common 
interests,  and  it  is  an  indisputable  fact  that  the  interest 
and  progress  of  each  of  the  States  are  identical. 

My  Government  beHeves  that,  in  conformity  with  the 
treaties  between  El  Salvador  and  the  United  States,  the 
Nicaraguan  treaty  cannot  be  submitted  to  the  considera- 

(48) 


49 

tion  of  the  Senate  for  ratification  pending  the  discussion 
provoked  by  the  protest  laid  before  Your  Excellency  on 
the  2ist  of  October,  1913,  with  the  purpose  of  safeguarding 
the  rights  and  interests  of  El  Salvador  that  would  be 
affected  by  the  concession  granted  to  your  Government 
for  the  estabUshment  of  a  naval  base  in  the  Gulf  of  Fon- 
seca. 

My  Government,  in  respectfully  presenting  this  pro- 
test, not  only  fulfills  a  duty  imposed  upon  it  by  the 
Fundamental  Charter  of  the  country,  but  thereby  also 
faithfully  interprets  and  expresses  the  sentiment  of  the 
nation. 

With  great  pleasure  I  reiterate  to  Your  Excellency  the 
assurances  of  my  most  distinguished  consideration. 

Carlos  A.  Meza. 


APPENDIX  D. 

Department  of  State, 

Washington,  July  i6,  1914. 
Senor  Dr.  Don  Cari^os  A.  Meza, 

Charge  d' Affaires  of  El  Salvador. 
Sir: 

I  beg  to  acknowledge  receipt  of  your  communication  of 
July  8,  and  to  say  that  your  Government  has  been  mis- 
informed in  respect  to  the  proposed  treaty  with  Nicaragua. 
The  negotiations  have  not  been  concluded  and  no  treaty 
has  been  presented  to  the  Senate  for  ratification.  The 
Department  is  conferring,  in  confidence,  with  the  Foreign 
Relations  Committee  of  the  Senate  in  regard  to  a  tentative 
draft,  the  terms  of  which  have  not  been  made  public.  If 
the  matter  in  which  your  Government  has  expressed  an 
interest  becomes  a  matter  for  practical  consideration,  we 
shall  be  pleased  to  examine  into  the  protest  which  you 
present. 

With  assurances  of  high  esteem,  I  am,  my  dear  Mr. 
Meza, 

Very  sincerely  yours, 

W.  J.  Bryan. 


(50) 


APPENDIX  E. 

Legation  op  Eiv  Sai^vador 
In  the  United  States  of  America, 

Washington,  July  21,  1914. 

His  Excellency,  William  J.  Bryan, 

Secretary  of  State, 
Washington. 
Your  Excellency: 

I  have  had  the  honor  to  receive  Your  Excellency's 
communication,  bearing  date  the  i6th  instant,  in  which 
you  acknowledge  receipt  of  mine  of  the  8th.  Your  Ex- 
cellency informs  me  therein  that  my  Government  has 
been  misinformed  with  respect  to  the  treaty  with  Nica- 
ragua; that  the  negotiations  have  not  been  completed, 
and  that  no  treaty  has  been  presented  to  the  Senate  for 
ratification;  that  the  Department  is  confidentially  in 
conference  with  the  Committee  on  Foreign  Relations  of 
the  Senate  respecting  a  tentative  draft,  the  terms  of 
which  have  not  been  made  public,  and  that,  if  the  object 
in  which  my  Government  has  manifested  its  interest 
should  reach  the  status  of  a  matter  for  practical  considera- 
tion, Your  Excellency  would  be  pleased  to  consider  the 
protests  I  have  presented. 

I  must  inform  Your  Excellency,  with  all  possible 
respect,  that,  from  the  context  of  my  aforementioned 
protest,  it  can  be  seen  that  it  refers  to  a  project  of  a 
treaty  with  Nicaragua;  but,  availing  myself  of  your 
suggestion  that  my  protest  will  be  considered  if  the 
object  to  which  it  refers  should  reach  the  status  of  a 
matter  for  practical  consideration,  I  also  leave  the  pro- 
test as  standing  and  as  pending  that  consideration. 

(si) 


52 

In  obedience  to  the  instructions  to  which  I  have 
referred,  I  must  also  inform  Your  Excellency  that  the 
action  of  my  Government,  directed  to  safeguarding  the 
integrity  of  El  Salvador's  autonomy — which  would  be 
diminished  if  a  protectorate  over  Nicaragua  were  estab- 
lished— is  perfectly  legitimate.  The  peculiar  ties  and 
relations  that  have  always  existed  between  the  Central 
American  States  are  interwoven  with  their  entire  history 
and  constitute  what  is  known  as  Central  American  inter- 
national law,  which  is  prescribed  in  the  political  constitu- 
tion of  each  of  those  States  as  an  essential  part  of  its 
existence. 

Those  bonds  and  that  law  merit  the  profoundest  con- 
sideration and  respect;  they  form  the  common  patri- 
mony of  all  and  each  of  the  States  and  the  separate  action 
of  any  one  of  them,  destined  to  destroy  them,  is  wrong 
and  unconstitutional. 

I  beg  Your  Excellency  to  accept  this  communication 
as  a  part  of  my  above-mentioned  protest. 

With  much  pleasure  I  reiterate  to  Your  Excellency 
the  assurances  of  my  most  distinguished  consideration. 

Carlos  A.  Meza. 


APPENDIX  F. 

Legation  of  El  Salvador  in  Washington, 

December  21,  IQ14. 
Senor  Dr.  Don  Francisco  Martinez  Suarez, 
Minister  of  Foreign  Relations, 
San  Salvador. 
Mr.  Minister: 

I  have  the  honor  to  enclose  herewith  a  copy  of  the 
treaty  which,  although  held  under  the  injunction  of 
secrecy  because  not  yet  made  pubhc,  the  Secretary  of 
State  placed  in  my  hands  yesterday. 

I  also  enclose  copy  of  the  Secretary's  letter  in  which  he 
mentions  the  amendment  relating  to  Costa  Rica. 

Reiterating  assurances  of  my  most  distinguished 
consideration. 

CarIvOS  a.  Meza. 


(S3) 


APPENDIX  Q. 

Department  of  State, 

Washington,  December  ig,  191 4. 
Senor  Dr.  Don  Francisco  Duenas, 

Minister  of  El  Salvador. 
My  Dear  Mr.  Minister  : 

In  compliance  with  your  request,  I  beg  to  enclose  a 
copy  of  the  treaty  negotiated  with  Nicaragua.  When  the 
treaty  is  called  up  for  consideration  in  the  Senate  the 
following  amendment  will  be  proposed  for  insertion  at  the 
close  of  Article  i : 

"Provided,  that  nothing  herein  shall  be  so  con- 
strued as  to  impair  or  affect  any  of  the  rights  of 
Costa  Rica  whether  acquired  by  treaty  or  otherwise." 

As  this  treaty  has  not  been  made  public,  you  will  please 
ask  your  Government  not  to  give  it  to  the  press. 

Accept,  Sir,  the  renewed  assurances  of  my  highest 
consideration. 

W.  J.  Bryan. 


(54) 


APPENDIX  H. 

The  Government  of  the  United  States  of  America  and 
the  Government  of  Nicaragua  being  animated  by  the 
desire  to  strengthen  their  ancient  and  cordial  friendship 
by  the  most  sincere  cooperation  for  all  purposes  of  their 
mutual  advantage  and  interest  and  to  provide  for  the  possi- 
ble future  construction  of  an  interoceanic  ship  canal  by  way 
of  the  San  Juan  River  and  the  great  Lake  of  Nicaragua, 
or  by  any  route  over  Nicaraguan  territory,  whenever  the 
construction  of  such  canal  shall  be  deemed  by  the  Govern- 
ment of  the  United  States  conducive  to  the  interests  of 
both  countries,  and  the  Government  of  Nicaragua  wish- 
ing to  facihtate  in  every  way  possible  the  successful 
maintenance  and  operation  of  the  Panama  Canal,  the 
two  Governments  have  resolved  to  conclude  a  Conven- 
tion to  these  ends,  and  have  accordingly  appointed  as 
their  plenipotentiaries : 

The  President  of  the  United  States,  the  Honorable 
Wilham  Jennings  Bryan,  Secretary  of  State ;  and 

The  President  of  Nicaragua,  Senor  General  Don  Emi- 
liano  Chamorro,  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary of  Nicaragua  to  the  United  States; 

Who,  having  exhibited  to  each  other  their  respective 
full  powers,  found  to  be  in  good  and  due  form,  have  agreed 
upon  and  concluded  the  following  articles : 

ArTICIvE  I. 

The  Government  of  Nicaragua  grants  in  perpetuity  to 
the  Government  of  the  United  States,  forever  free  from  all 
taxation  or  public  charge,  the  exclusive  proprietary  rights 
necessary  and  convenient  for  the  construction,  operation 
and  maintenance  of  an  interoceanic  canal  by  way  of  the 
San  Juan  River  and  the  great  Lake  of  Nicaragua  or  by 

(55) 


56 

way  of  any  route  over  Nicaraguan  territory,  the  details 
of  the  terms  upon  which  such  canal  shall  be  constructed, 
operated  and  maintained  to  be  agreed  to  by  the  two 
governments,  whenever  the  Government  of  the  United 
States  shall  notify  the  Government  of  Nicaragua  of  its 
desire  or  intention  to  construct  such  canal. 


ArticIvE  II. 

To  enable  the  Government  of  the  United  States  to  pro- 
tect the  Panama  Canal  and  the  proprietary  rights  granted 
to  the  Government  of  the  United  States  by  the  foregoing 
article,  and  also  to  enable  the  Government  of  the  United 
States  to  take  any  measure  necessary  to  the  ends  contem- 
plated herein,  the  Government  of  Nicaragua  hereby  leases 
for  a  term  of  ninety-nine  years  to  the  Government  of  the 
United  States  the  islands  in  the  Caribbean  Sea  known  as 
Great  Com  Island  and  Little  Com  Island;  and  the  Gov- 
ernment of  Nicaragua  further  grants  to  the  Government 
of  the  United  States  for  a  like  period  of  ninety-nine  years 
the  right  to  establish,  operate  and  maintain  a  naval  base 
at  such  place  on  the  territory  of  Nicaragua  bordering  upon 
the  Gulf  of  Fonseca  as  the  Government  of  the  United 
States  may  select.  The  Government  of  the  United  States 
shall  have  the  option  of  renewing  for  a  further  term  of 
ninety-nine  years  the  above  leases  and  grants  upon  the 
expiration  of  their  respective  terms,  it  being  expressly 
agreed  that  the  territory  hereby  leased  and  the  naval  base 
which  may  be  maintained  under  the  grant  aforesaid  shall 
be  subject  exclusively  to  the  laws  and  sovereign  authority 
of  the  United  States  during  the  terms  of  such  lease  and 
grant  and  of  any  renewal  or  renewals  thereof. 


57 

Article  III. 

In  consideration  of  the  foregoing  stipulations  and  for 
the  purposes  contemplated  by  this  Convention  and  for  the 
purpose  of  reducing  the  present  indebtedness  of  Nicaragua, 
the  Government  of  the  United  States  shall,  upon  the  date 
of  the  exchange  of  ratifications  of  this  Convention,  pay  for 
the  benefit  of  the  Republic  of  Nicaragua  the  sum  of  three 
milhon  dollars  United  States  gold  coin,  of  the  present 
weight  and  fineness,  to  be  deposited  to  the  order  of  the 
Government  of  Nicaragua  in  such  bank  or  banks  or  with 
such  banking  corporation  as  the  Government  of  the 
United  States  may  determine,  to  be  applied  by  Nicaragua 
upon  its  indebtedness  or  other  public  purposes  jar  the 
advancement  of  the  welfare  oj  Nicaragua  in  a  manner  to 
he  determined  by  the  two  High  Contracting  Parties,  all  such 
disbursements  to  be  made  by  orders  drawn  by  the  Minister 
of  Finance  of  the  Republic  of  Nicaragua  and  approved  by 
the  Secretary  of  State  of  the  United  States  or  by  such  person 
as  he  may  designate. 

Article  IV. 

This  Convention  shall  be  ratified  by  the  High  Contract- 
ing Parties  in  accordance  with  their  respective  laws,  and 
the  ratifications  thereof  shall  be  exchanged  at  Washington 
as  soon  as  possible. 

In  witness  whereof  the  respective  plenipotentiaries  have 
signed  the  present  treaty  and  have  affixed  thereunto  their 
seals. 

Done  at  Washington,  in  duplicate,  in  the  English  and 
Spanish  languages,  on  the  5th  day  of  August,  in  the  year 
nineteen  hundred  and  fourteen. 

William  Jennings  Bryan,     [seal.] 
Bmiliano  Chamorro.  [seal.] 


APPENDIX  I. 

Legation  of  Hi.  Salvador 
In  the  United  States  of  America, 

Washington,  February  g,  igi6. 
His  Excellency,  Robert  Lansing, 
Secretary  oj  State, 
Washington. 
Your  Excellency: 

I  have  the  honor  to  inform  Your  Excellency  that  my 
Government  has  given  me  special  instructions  to  present 
to  the  Department  over  which  you  preside,  the  following 
protests  against  the  treaty  concluded  between  the  United 
States  and  Nicaragua,  now  pending  ratification  by  the 
American  Senate.  To  the  fundamental  reasons  set  forth 
in  the  earHer  protest  of  my  Government,  of  October  21, 
19 1 3,  I  have  the  honor  to  add  herein  the  following  equally 
fundamental  reasons,  conclusively  demonstrating  that 
the  treaty  mentioned  violates  the  Central  American 
Conventions  that  were  signed  at  Washington  in  1907,  in 
that  the  Government  of  Nicaragua  therein  cedes  to  the 
United  States  a  naval  base  in  the  Gulf  of  Fonseca. 

The  negotiators  of  the  Conventions  of  Washington  of 
1907  sought,  before  all  things,  the  most  efficacious  means 
for  the  estabhshment  of  a  stable  peace  in  Central  America ; 
and  it  was  with  that  noble  end  in  view  that  the  neutrality 
of  Honduras  was  stipulated  in  Article  III  of  the  General 
Treaty  of  Peace  and  Amity — a  most  essential  part  of 
those  pacts. 

The  geographical  circumstance  that  Honduran  territory 
occupies  a  central  position  between  Guatemala,  El  Salva- 
dor and  Nicaragua  has  in  great  part  facilitated  the 
development  of  revolutionary  uprisings  and  wars,  since 

(58) 


59 

they  have  always  found  a  base  of  operations,  if  I  may  use 
that  expression,  in  the  extensive  uninhabited  regions  of 
the  Honduran  Country. 

From  the  fact  that  the  neutrahty  of  the  Honduran 
territory  was  considered  to  be  the  principal  basis  for 
peace,  that  doctrine  of  the  neutrality  of  Honduras  was 
resorted  to  by  the  Central  American  negotiators  in  notable 
good  faith  and  good  will,  and  the  North  American  states- 
men who  aided  in  the  success  of  the  Central  American 
Conferences,  grasping  instantly  the  transcendental  impor- 
tance and  great  efficaciousness  of  that  combination  of 
Central  American  policy,  seized  upon  it  with  much 
eagerness  as  a  capital  and  happy  solution  of  the  pacific 
undertaking  which  that  Central  American  Conference 
had  been  called  upon  to  achieve. 

As  has  just  been  said,  Your  Excellency,  the  permanent 
neutrality  of  Honduras  was  explicitly  consecrated  in 
Article  III  of  the  General  Treaty  of  Peace  and  Amity. 
The  text  of  that  Article  reads  as  follows: 

"Art.  ni.  Taking  into  account  the  central  geo- 
graphical position  of  Honduras  and  the  facilities 
which,  owing  to  this  circumstance,  have  made  its 
territory  most  often  the  theater  of  Central  American 
conflicts,  Honduras  declares  from  now  on  its  absolute 
neutrality  in  event  of  any  conflict  between  the  other 
Republics;  and  the  latter,  in  their  turn,  provided 
such  neutrality  be  observed,  bind  themselves  to 
respect  it  and  in  no  case  to  violate  the  Honduranean 
territory." 

The  conception  of  permanent  neutrality  in  this  case  of 
Honduras,  as  in  any  other  case,  has  for  its  principal  object 
the  imposition  on  the  States  that  recognize  and  guarantee 
it  the  duty  to  consider  themselves  isolated  or  separated 
by  the  impassable  bridge  of  neutralized  territories,  and 
permanently   held   at   a   distance   from   those   strategic 


6o 

points  which  are  comprised  within  the  neutral  zone  and 
which,  therefore,  neither  of  them  can  occupy,  or  even  in 
any  wise  avail  itself  of,  for  the  purpose  of  obtaining  an 
advantage  over,  or  menacing  the  others. 

And  this  rule  of  equity  and  impartiality,  applicable  to 
the  co-guarantor  States,  is  equally  applicable  to  the 
friends,  allies,  protectors,  and  colleagues  of  any  one  of 
them,  with  respect  to  the  others,  even  in  the  case  where 
those  others  may  not  have  guaranteed  or  recognized  the 
neutrality,  if  they  try  to  violate  it  under  the  protection 
of  one  of  those  which  should  respect  it.  In  a  word,  what 
one  of  the  States  co -guaranteeing  the  neutrality  may  not 
do  by  itself  may  not  be  done  through  the  medium  of 
another,  or  for  another;  this  because  neutrality  has  for 
its  object,  in  the  interest  of  those  that  recognize  it,  to 
preserve  in  the  neutralized  country  a  state  of  peace 
under  such  conditions  as  will  offer  to  all  its  guarantors 
and  neighbors  the  absolute  security  of  its  frontiers. 

The  undivided  community  in  the  Gulf  of  Fonseca 
enjoyed  by  the  States  to  which  those  waters  belong  (El 
Salvador,  Honduras,  and  Nicaragua)  is  sufficient  to 
justify  the  right  of  either  to  oppose  the  acts  of  any  of  the 
others  that  may  menace  the  security  of  its  existence,  and 
with  greater  reason  and  justice  should  that  right  be  held 
to  be  incontestable  when  it  is  considered  that  Honduras 
must  extend  its  neutraUty  to  the  interior  of  the  Gulf  of 
Fonseca.  There  results,  then,  from  the  two  combined 
principles — that  of  community  and  that  of  neutrality — 
an  unrestricted  and  absolute  guaranty  of  the  right  of  all 
and  each  of  the  three  countries  to  prevent  any  act  on 
the  part  of  the  others  which  tends  to  violate  either  that 
community  or  that  neutrality.  Thus,  then,  where  the 
preventive  measures  of  one  may  fail,  those  measures 
on  the  part  of  another  may  avail.     There  is,  therefore, 


6i 

constituted  within  the  Gulf  a  state  of  inviolable  right 
which  guarantees  the  independence,  sovereignty,  and 
security  of  each  of  the  States  against  any  act  of  the 
others  that  seeks  to  violate,  or  even  menace,  them.  It 
is  difficult  to  conceive  the  existence  of  a  contrary  principle 
that  could  limit  the  guaranty  which  establishes,  in  favor 
of  the  three  States,  the  legal  system  created  by  the  co- 
existence of  the  principles  of  community  and  neutrality. 

And,  necessarily,  the  Central  American  Conference 
at  Washington,  in  proclaiming  the  neutraUty  of  Honduran 
territory,  naturally  and  logically  believed  that  it  had 
forever  put  an  end  to  disputes  that  might  arise  over  ques- 
tions involving  in  any  way  the  neutralized  and  guaranteed 
territory.  It  must  necessarily  be  believed  that,  in  extend- 
ing over  the  whole  of  the  territory  of  Honduras  the  prin- 
ciple of  neutrality,  there  was  introduced  the  principle  of 
harmony  and  concord,  wherein  lies  the  specific  solution 
of  all  conflicts — even  those  arising  in  the  communal 
waters  of  the  Guh  of  Fonseca,  where  the  principle  of  its 
neutralization  should  put  an  end  to  anarchy,  ambition, 
and  disorder,  from  whatever  quarter  they  might  make 
their  appearance. 

That  a  naval  base,  arsenal,  or  military  establishment 
located  on  a  coast  would  constitute  a  menace  violative 
of  the  neutrality  of  the  waters  dominated  by  the  military 
or  naval  forces  pertaining  to  the  point  where  such  estab- 
Hshments  are  emplaced,  is  an  incontestable  principle  of 
international  law. 

In  the  projected  agreement  negotiated  by  Nicaragua 
and  the  Ijnited  States  for  the  establishment  of  a  naval 
base  there  is  an  attempt  to  violate,  in  a  manner  both 
flagrant  and  evident,  the  principle  of  the  neutrality  of 
Honduras,  and  to  throw  overboard  the  legal  system 
instituted   by   the    Conference   of   Washington   for   the 


62 

preservation  of  peace,   order,   and  harmony  among  the 
contracting  States. 

So,  then,  neither  Nicaragua  nor  the  United  States  of 
North  America  can  lawfully  menace  the  neutrality  of  the 
maritime  territory  of  Honduras,  within  the  waters  of  the 
Gulf,  nor  break  up  the  harmony  of  the  status  jure  that 
necessarily  exists  in  that  locahty,  as  a  consequence  of 
the  undivided  community  in  the  territorial  sea  enclosed 
by  the  Gulf. 

That  Nicaragua  may  not  lawfully  violate  the  principle 
of  Honduran  neutrality,  it  is  idle  to  suggest,  for  she  was 
one  of  the  countries  that  discussed,  approved,  and 
exchanged  ratifications  of  the  Conventions  of  Washing- 
ton, and,  as  the  United  States  of  North  America  took  part 
in  the  negotiations  of  those  Conventions  in  the  character 
of  mediator,  in  cooperation  with  Mexico,  she  also  can  not 
lawfully  violate  those  pacts. 

And,  in  view  of  the  fact  that  the  representative  of  the 
United  States  of  North  America,  as  well  as  the  repre- 
sentative of  the  United  States  of  Mexico,  figure  in  the 
preambles  of  the  pacts  negotiated  at  the  Conference,  which 
declare  that  they  were  present  at  all  the  dehberations,  it  is 
impossible  not  to  recognize  in  law  the  role  of  mediator 
which  both  the  Government  of  the  United  States  of 
North  America  and  of  Mexico  assumed  in  fact  and  effec- 
tively before  the  Conference. 

Now,  the  first  duty  of  a  mediator  is  to  see  to  it  that 
the  agreements  concerning  which  he  interposed  his 
mediation  are  fulfilled,  and  to  oppose  all  acts  that  tend 
to  destroy  the  results  of  his  mediation. 

The  principle,  then,  may  be  depended  on  that  the 
Repubhcs  of  Guatemala,  Nicaragua,  and  Costa  Rica, 
by  virtue  of  the  Treaty  of  Washington,  have  taken  upon 
themselves  the  character  of  co-guarantors  of  the  neu- 


63 

trality  of  Honduras.  And  it  would  seem  natural  and 
logical  to  assume  as  much  with  respect  to  the  United 
States  of  North  America. 

It  is,  therefore,  a  matter  of  profound  surprise,  Mr.  Secre- 
tary, to  my  Government,  that  the  Committee  on  Foreign 
Relations  of  the  Senate  should  have  recommended  for 
the  approval  of  that  body,  the  canal  treaty  between  the 
United  States  and  Nicaragua,  without  having  defined, 
and  taken  duly  into  consideration,  the  rights  of  El 
Salvador  in  the  Gulf  of  Fonseca,  to  which  the  protest 
hereinbefore  mentioned  related. 

In  this  matter  my  Government  has  submitted  to  the 
American  Government,  on  this  and  other  occasions,  the 
group  of  principles  of  law  and  justice  which  support  the 
right  of  El  Salvador.  In  doing  so,  it  did  no  more  than 
fulfill  its  duty  to  defend  the  sovereignty  of  the  country  and 
its  consequent  rights  in  the  Gulf  of  Fonseca — a  duty 
imposed  upon  it  by  the  Fundamental  Charter.  It  has, 
with  all  sincerity,  put  forth,  and  still  urges,  those  princi- 
ples before  the  American  Government,  with  the  faith 
inspired  by  the  sacred  respect  in  which  they  are  held,  and 
especially  with  the  profound  faith  inspired  by  the  high 
ideals  of  justice  and  international  good  will  that  guide  the 
American  Government  and  people  in  their  relations  with 
the  other  republics  on  this  hemisphere. 

In  making  these  observations,  Mr.  Secretary,  in  the 
name  of  my  Government,  it  is  exceedingly  gratifying  to 
me  at  the  same  time  to  express  its  profound  hope  that  the 
American  Government  will  find  an  effective  way  to  prevent 
the  ratificadon  of  the  Nicaraguan  Treaty,  unless,  and  until, 
the  inalienable  rights  of  El  Salvador  shall  have  been 
defined  and  taken  into  account. 

I  have  the  honor.  Your  Excellency,  to  reiterate  on  this 
occasion  the  assurances  of  my  distinguished  consideration. 

R.  ZaIvDivar. 


APPENDIX  J. 

Legation  of  the  United  States  of  America, 

San  SaIvVADOR,  February  21,  igi6. 
His  Excellency,  Dr.  Francisco  Martinez  SuarEz, 
Minister  for  Foreign  A  fairs, 
Present. 
Mr.  Minister: 

Acting  under  instructions  from  the  Department  of 
State  I  have  the  honor  to  inform  Your  Excellency's 
Government  that  on  the  1 8th  instant  the  Senate,  by  a  vote 
of  fifty-five  to  eighteen,  consented  to  the  ratification  of  the 
Nicaraguan  Treaty  with  the  following  amendments : 

Article  one,  line  two,  after  the  words  United  States, 
insert  comma  and  following  words — free  from  all  taxation 
or  other  public  charge,  followed  by  comma. 

At  the  end  of  Article  three  strike  out  period  and  add  the 
following — or  other  public  purposes  for  the  advancement 
of  the  welfare  of  Nicaragua  in  a  manner  to  be  determined 
by  the  two  high  contracting  parties,  all  such  disburse- 
ments to  be  made  by  orders  drawn  by  the  Minister  of 
Finance  of  the  Republic  of  Nicaragua  and  approved  by 
the  Secretary  of  State  of  the  United  States  or  by  such 
person  as  he  may  designate. 

The  resolution  of  ratification  contained  the  following 
clause:  Provided  that  whereas  Costa  Rica,  Salvador  and 
Honduras  have  protested  against  the  ratification  of  said 
convention  in  the  fear  or  belief  that  said  convention  might 
in  some  respect  impair  existing  rights  of  said  States, 
therefore  it  is  declared  by  the  Senate,  in  advising  and 
consenting  to  the  ratification  of  the  said  convention  as 
amended,  that  such  advice  and  consent  are  given  with  the 
understanding  to  be  expressed  as  a  part  of  the  instrument 

(64) 


65 

of  ratification  that  nothing  in  said  convention  is  intended 
to  affect  any  existing  right  of  any  of  the  said  named 
States. 

I  avail  myself  of  this  occasion  to  renew  to  Your  Excel- 
lency the  assurances  of  my  highest  consideration  and 
perfect  esteem. 

Henry  F.  Tennant. 


APPENDIX  K. 

NaTIONAIv    PAI.ACE, 

San  vSalvador,  March  j,  iqi6. 
The  Honorable' Henry  F.  Tennant, 

Charge  d'Af  aires  of  the  United  States  oj  America, 
San  Salvador. 
Mr.  Charge  d'affaires: 

This  Department  has  received  your  honored  despatch 
wherein  you  advise  it  that,  acting  upon  instructions  from 
the  Department  of  State,  you  inform  this  Government 
that  on  the  i8th  of  last  month  the  United  States  Senate, 
by  a  vote  of  fifty-five  to  eighteen,  consented  to  the 
ratification  of  the  Nicaraguan  Treaty,  with  certain  amend- 
ments, which  you  are  good  enough  to  indicate,  and  of 
which  the  third  reads  as  follows : 

' '  Provided,  That  whereas  Costa  Rica,  Salvador  and 
Honduras  have  protested  against  the  ratification  of 
aforesaid  convention  in  the  fear  or  belief  that  said 
convention  might  in  some  respect  impair  existing 
rights  of  said  States,  therefore,  it  is  declared  by  the 
Senate,  that  in  advising  and  consenting  to  the 
ratification  of  the  said  convention  as  amended,  such 
advice  and  consent  are  given  with  the  understanding, 
to  be  expressed  as  a  part  of  the  instrument  of  ratifica- 
tion, that  nothing  in  said  convention  is  intended  to 
affect  any  existing  right  of  any  of  the  said  named 
States." 

My  Government,  in  taking  note  of  this  information, 
believes  that  it  would  fail  in  a  primal  duty  if  it  did  not 
discuss  at  length  a  matter  of  such  importance,  not  only  to 
the  end  that  effective  protection  of  its  rights  may  be  pro- 
cured, but  also  that  the  harmony  and  loyalty  that  have 
always  presided  over  its  diplomatic  relations  with  the 
North  American  Government  may  be  preserved. 

(66) 


«7 

Always  heretofore  my  Government,  prompted  by  the 
high  sense  of  justice  of  the  North  American  Government, 
has  rested  in  the  behef  that,  pending  ratification  by  the 
Senate,  the  negotiations  relating  to  the  matter  of  the 
treaty  would  not  be  concluded  before  final  action  should 
be  taken  on  the  protests  it  had  presented  in  due  course 
against  that  treaty. 

That  belief  was  grounded  chiefly  on  the  conviction  that 
your  Government  would  give  full  consideration  to  the 
facts  put  forth  by  this  Government  in  its  last  protest,  to 
the  effect  that  the  Nicaraguan  Treaty  is  violative  also  of 
the  neutrality  of  Honduran  territory,  which  constitutes  a 
raison  d'etre  for  the  Central  American  Convention  con- 
cluded at  Washington  on  the  20th  of  December,  1907. 

My  Government  believes,  Sir,  that  the  Nicaraguan 
Treaty  lacks  legal  bases  in  legal  rights  because  manifestly 
contrary  as  well  to  treaties  now  in  force  as  to  the  prin- 
ciples of  international  law,  and,  therefore,  to  justice  and 
to  that  consideration  which  nations  ought  to  observe  in 
their  amicable  relations. 

The  General  Treaty  of  Peace  and  Amity,  which  is  the 
principal  basis  of  those  conventions,  proposes  to  maintain 
the  peace  of  Central  America  as  the  essential  means  for 
the  realization  of  the  lofty  ends  that  were  pursued  by  the 
Central  American  Conference  assembled  at  Washington 
in  1907.  This  purpose  was  set  forth  in  Article  I  of  that 
diplomatic  instrument  wherein  the  five  Central  American 
Republics  solemnly  declared  that  they  held  it  to  be  a 
binding  duty  upon  them,  in  their  mutual  relations,  to 
maintain  peace  through  measures  that  might  be  estab- 
lished for  that  purpose.  The  first  of  those  measures  should 
be  to  secure  in  the  several  Republics  the  benefit  derivable 
from  the  cooperation  of  the  institutions  provided  for 
maintaining  their  stability  and  the  prestige  with  which 


68 

they  should  surround  themselves;  and,  in  order  to  attain 
such  noble  ends,  it  is  declared  in  Article  II  that  any  dis- 
position or  measure  that  tends  to  alter  the  constitutional 
order  in  any  of  the  five  Republics,  will  be  considered  as  a 
menace  to  the  peace  thereof. 

Now,  the  constitutional  order  may  be  altered  in  many 
ways,  but  without  the  shadow  of  a  doubt  the  most 
menacing,  grave,  and  dangerous  way  of  altering  that  order 
is  the  fact,  rarely  occurring  in  America,  that  a  foreign 
nation,  strong  and  powerful,  should  take  possession  of  a 
part  of  Central  American  territory  and  establish  therein 
a  military  predominance,  which  incontestably  would  result, 
in  a  short  time,  as  the  only  practical  means  whereby  the 
military  power  thus  lodged  in  its  territory  could  consoli- 
date itself  and  provide  for  its  security,  in  creating  a 
political  control  over  the  whole  of  the  country  thus  dis- 
membered. With  the  dominion,  sovereignty,  and  juris- 
diction of  the  dismembered  country  thus  diminished,  it  is 
evident  that  the  constitutional  order  must  be  basically 
altered  because  the  impermm  of  the  constitution  and  con- 
stitutional order  has  for  its  principal  end  the  free  exercise 
of  sovereignty  and  the  unassailable  integrity  of  its  territory. 

When  a  strong  nation  seizes  upon  a  part,  however  small, 
of  the  territory  of  a  weak  country,  the  lines  of  demarca- 
tion between  the  exercise  of  the  two  sovereignties  cannot 
be  fixed  morally,  although  they  may  be  materially,  for 
the  reason  that  it  is  impossible  for  the  stronger  power  to 
refrain  from  constantly  seeking  to  broaden  its  sphere  of 
influence,  predominance,  interest,  at  the  expense  of  the 
weaker  power;  and  this  even  without  ambitious  designs 
but  solely  as  the  result  of  a  natural  and  logical  tendency 
and  as  a  postulate  necessary  to  preserve  the  security  and 
stabiUty  of  the  military  or  political  establishment  which 
the  powerful  nation  seeks  to  found. 


69 

Indeed,  the  instinct  of  self-defense  requires  the  latter 
as  a  paramount  necessity  for  the  purpose  of  constantly 
broadening  the  sphere  of  its  power,  either  by  the  appropria- 
tion of  strategic  points  that  might  menace  the  security 
of  its  military  base,  or  by  obtaining  control  of  the  poUtical, 
and  even  the  economic,  interests  of  the  weaker  country, 
which  otherwise  might  bring  about  external  or  internal 
complications  that  would  be  inimical  to  the  security  and 
existence  of  the  zone  reserved  by  the  stronger  power, 
even  though  that  zone  were  mathematically  laid  out.  The 
tendency  to  encroachment,  under  such  circumstances,  is 
incontrovertibly  demonstrated  by  the  history  of  the 
colonizations  made  by  European  nations  in  America, 
Asia,  and  Africa  from  the  fifteenth  century  to  our  own 
day. 

It  is  in  order  to  put  an  end  to  those  always-dangerous 
encroachments,  that  the  political  constitutions  of  the 
American  States  prohibit,  as  the  Nicaraguan  constitution 
does  in  its  second  article,  the  alienation  to  a  foreign 
nation  of  any  portion  of  its  national  territory,  because 
the  encroachment  upon  that  territory  by  a  foreign  sover- 
eignty would  alter  the  order  that  is  safeguarded  by  the 
constitutional  law  by  the  transcendental  and  efficacious 
means  of  excluding  foreign  power  by  virtue  of  the  author- 
ity of  the  constitutional  principle  relating  to  the  inalien- 
ableness  of  the  nation's  territory.  Doubtless,  also,  for 
the  same  reason,  the  illustrious  President  Monroe  declared 
in  1823  that: 

"The  occasion  has  been  deemed  proper  for  assert- 
ing as  a  principle  in  which  rights  and  interests  of  the 
United  States  are  involved,  that  the  American  con- 
tinents, by  the  free  and  independent  condition  which 
they  have  assumed  and  maintained,  are  henceforth 
not  to  be  considered  as  subjects  for  future  coloniza- 
tion by  any  European  power.     *     *     *     We  owe  it, 


70 

therefore,  to  candor  and  to  the  amicable  relations 
existing  between  the  United  States  and  those  powers 
to  declare  that  we  should  consider  any  attempt  on 
their  part  to  extend  their  system  to  any  portion  of 
this  hemisphere  as  dangerous  to  our  peace  and  safety. 
With  the  existing  colonies  or  dependencies  of  any 
European  power  we  have  not  interifered  and  shall  not 
interfere.  But  with  the  governments  who  have 
declared  their  independence  and  maintained  it,  and 
whose  independence  we  have,  on  great  consideration 
and  on  just  principles,  acknowledged,  we  could  not  view 
any  interposition  for  the  purpose  of  oppressing  them, 
or  controlling  in  any  other  manner  their  destiny,  by 
any  European  power  in  any  other  light  than  as  the 
manifestation  of  an  unfriendly  disposition  towards 
the  United  States." 

The  Monroe  doctrine  has  for  its  basis,  then,  the  right  of 
self-defense  and  security  of  the  country  that  proclaims  it, 
and  in  this  sense  it  is  permissible  to  say  that  by  providing, 
in  the  interest  of  the  immutability  of  the  constitutional 
order  of  the  Central  American  States,  a  means  of  prohibit- 
ing the  alienation  or  colonization  of  their  territories. 
Article  II  of  the  treaty  above  cited,  is  as  legitimate  as  that 
famous  doctrine  and  is  founded  on  the  same  firm  base: 
the  right  of  nations  to  provide  for  their  security. 

Every  disposition  or  measure,  therefore,  adopted  by  a 
Central  American  State  which  alters  its  constitutional 
order  by  the  alienation  of  its  territory  and  the  encroach- 
ment thereon  of  the  sovereignty  of  a  foreign  power 
flagrantly  violates  the  fundamental  and  express  principle 
whereon  the  General  Treaty  of  Peace  and  Amity  rests, 
even  though  the  alienation  or  colonization  of  a  part  of  its 
territory  be  merely  in  the  form  of  a  lease  for  a  term  of 
years.  The  language  used  in  Article  II  of  the  canal 
treaty  makes  it  perfectly  clear  and  evident  that  the  con- 
stitutional order  of  Nicaragua  must  inevitably  be  altered 


71 

by  the  establishment  of  the  naval  base  provided  for  in 
that  treaty.     The  language  is  as  follows: 

"And  the  Government  of  Nicaragua  further  grants 
to  the  Government  of  the  United  States  for  a  like 
period  of  ninety-nine  years  the  right  to  establish, 
operate,  and  maintain  a  naval  base  at  such  place  on 
the  territory  of  Nicaragua  bordering  upon  the 
Gulf  of  Fonseca  as  the  Government  of  the  United 
States  may  select.  The  Government  of  the  United 
States  shall  have  the  option  of  renewing  for  a  further 
term  of  ninety-nine  years  the  above  leases  and  grants 
upon  the  expiration  of  their  respective  terms,  it 
being  expressly  agreed  that  the  territory  hereby  leased 
and  the  naval  base  which  may  be  maintained  under  the 
grant  aforesaid  shall  be  subject  exclusively  to  the  laws 
and  sovereign  authority  of  the  United  States  during  the 
terms  of  such  lease  and  grant  and  any  renewal  or  re- 
newals thereof." 

The  alteration  of  Nicaragua's  constitutional  order  could 
not  be  more  clearly  shown  than  by  withdrawing  from  its 
own  sovereignty  a  part  of  its  territory  and  subjecting  it  to 
the  dominion  and  sovereignty  of  the  United  States. 
Furthermore,  by  the  second  amendment  of  the  Senate, 
the  North  American  Government  reserves  to  itself 
complete  and  absolute  control  over  the  destination,  form 
and  management  of  the  expenditure  of  the  three  million 
dollars  that  constitute  the  price  to  be  paid  to  the  Govern- 
ment of  Nicaragua,  and  direct  that  the  fund  so  to  be  paid 
by  the  Government  of  the  United  States  to  that  of 
Nicaragua  shall  be  deposited  in  such  banks  as  the  former 
may  determine  and  disbursed  by  orders  issued  by  the 
Nicaraguan  treasury  and  endorsedjby  the  Secretary  of 
State  of  the  United  States  or  by  the  person  designated 
by  the  latter.  All  of  which  diminishes  the  sovereignty  of 
Nicaragua,  subjects  it  to  foreign  fiscalization  and  alters 
unquestionably  the^Nicaraguan^constitutional  order  that 


72 

rests  upon  the  principle  of  the  absolute  independence  of 
the  nation's  Government  and  on  the  inalienable  integrity 
of  the  nation's  territory. 

But  not  alone  in  that  serious  manner  have  the  contract- 
ing parties  violated  the  Conventions  of  Washington  by  the 
establishment  of  the  naval  base  in  question.  Article  III  of 
the  General  Treaty  of  Peace  and  Amity  itself,  which 
establishes  the  civilized  and  pacific  principle  of  neutraliza- 
tion of  the  territory  and  waters  of  Honduras  as  one  of  the 
noblest  and  most  useful  achievements  of  those  conven- 
tions, has  also  been  violated.  The  form  and  extent  in 
which  Honduran  neutrality  has  been  consecrated  neces- 
sarily implies  the  application  of  all  the  consequences  that 
may  be  derived  from  the  principles  of  international  law 
respecting  the  permanent  neutralization  of  States. 

Neutrality,  which  is  one  of  the  legal  forms  adopted  for 
the  maintenance  of  the  right  of  security  belonging  to 
nations,  imposes  on  the  nations  that  guarantee  it  the 
unavoidable  obligation  not  to  violate  that  status  of  neu- 
trality by  any  act  that  might  menace  the  security  of  the 
neutralized  country,  not  only  within  the  zone  of  neutraliza- 
tion, but  even  beyond  it  in  the  territory  proper  of  the 
guaranteed  State,  and  it  cannot  be  questioned  that  the 
establishment  of  a  naval  base  in  the  immediate  vicinity, 
or  in  the  maritime  zone,  of  neutralized  territory,  is  such  an 
act  of  violation. 

This  has  always  been  the  understanding  in  international 
practice,  because  the  principle  that  the  neutralization  of 
navigable  waters  imposes  on  the  riparian  States  the 
obligation  not  to  fortify  their  coasts  is  a  principle  long 
recognized  and  accepted.  To  this  effect  the  European 
powers  assembled  at  the  Conference  of  Paris,  in   1856, 


73 

declared    themselves   in   Article    XIII    of    the   treaty   of 
March  30,  which  reads  as  follows: 

"The  Black  vSea  having  been  neutralized  by  the 
terms  prescribed  in  Article  XI,  military  maritime 
arsenals  are  objectless  and  unnecessary  on  its  coasts. 
Consequently  His  Majesty  the  Emperor  of  all  the 
Russias  and  his  Imperial  Majesty  the  vSultan, 
agree  not  to  establish  or  maintain  on  that  littoral 
any  military-maritime  arsenal." 

The  neutralization  of  the  Baltic  Sea  was  also  established 
in  that  manner  at  the  same  Conference: 

"His  Majesty  the  Em.peror  of  all  the  Russias,  in 
order  to  satisfy  their  Majesties  the  Emperor  of  the 
French  and  the  Queen  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  declares  that  the  Aaland 
Islands  will  not  be  fortified,  nor  shall  any  military  or 
naval  establishment  be  created  or  maintained  there- 
on." 

And  more  recently  Germany  and  France,  in  exchanging 
the  territories  mutually  ceded  in  Equatorial  Africa, 
agreed  to  neutralize  the  waters  of  the  great  rivers  running 
through  them,  and,  to  that  end,  stipulated  as  follows  in 
Article  IX  of  the  convention  known  as  the  "Congo 
Agreement"  of  November  4,  191 1 : 

"France  and  Germany,  desiring  to  strengthen 
their  good  relations  in  their  Central  African  posses- 
sions, agree  not  to  construct  any  fortified  work  in  the 
neighborhood  of  the  streams  or  watercourses  that 
are  subject  to  common  navigation.  This  prohibition 
does  not  apply  to  works  for  simple  security,  intended 
to  protect  military  posts  against  the  incursions  of  the 
natives." 

On  the  8th  of  April,  1904,  France  and  England  brought 
to  an  end  their  differences  over  the  grave  and  complicated 
Moorish  question  by  means  of  the  diplomatic  act  that 


74 

has  come  to  be  known  as  the  Entente  cordiale.     Article 

VII  of  that  convention  reads: 

"For  the  purpose  of  insuring  the  free  passage  of 
the  Strait  of  Gibraltar,  the  two  Governments  agree 
not  to  permit  the  construction  of  fortifications  or 
strategic  works  of  any  class  on  that  part  of  the 
Moroccan  coast  comprised  between  Melilla  and  the 
heights  that  dominate  the  right  bank  of  the  Sebu, 
exclusively.  This  disposition,  however,  does  not 
apply  to  the  two  points  now  occupied  by  Spain  on 
the  Moroccan  Httoral  of  the  Mediterranean." 

The  British  Government  considered  this  stipulation  as 
a  compensation  for  the  corresponding  stipulation  that 
insured  the  neutrality  of  the  Suez  Canal,  and  this  in 
spite  of  the  fact  that  the  Strait  of  Gibraltar  had  always 
been  considered  by  England  as  of  vital  importance  to 
its  commercial  and  strategic  interests. 

It  is,  then,  incontestably  an  established  fact  that,  in 
conformity  with  the  principles  and  practices  of  inter- 
national law,  the  fortification  of  points  near  neutral 
territories  or  waters  is  clearly  prohibited  as  constituting 
a  menace  to  the  existence  of  the  status  of  neutrahty.  The 
Government  of  Nicaragua,  therefore,  had  not  the  power 
to  authorize  the  establishment  of  the  naval  base  which 
stands  as  a  practical  menace  to  the  security  of  the  imme- 
diate neutralized  territory. 

Nor  were  the  United  States  justified  in  infringing  the 
Honduran  neutrality  since  the  character  of  mediator 
that  that  Government  assumed  at  the  Central  American 
Conference  of  Washington  estops  it  from  infringing  the 
stipulations  of  the  pacts  subscribed  by  that  Government 
in  the  exercise  of  its  counsel  and  mediation.  The  con- 
trary would  be  in  opposition  to  its  duty  as  mediator. 
Consequently,  because  of  the  fact  that  the  naval  base  in 
the  Gulf  of  Fonseca  would  stand  as  a  violation  of  the  funda- 
mental principles  of  the  Conventions  of  Washington,  the 


75 

stipulations  of  the  Bryan-Chamorro  treaty  are  rendered 
nugatory,  and  the  rights  claimed  by  the  United  States 
under  such  stipulations  are  invalid. 

Similarly  violated  are  the  principles  of  international 
law  that  relate  to  the  right  of  security  of  nations,  because, 
according  to  those  principles,  no  State  is  permitted  to 
perform  any  act  that  menaces  the  security  of  another, 
and  this  is  an  obligation  that  is  even  more  strict  and  im- 
perative when  the  menacing  act  is  performed  in  a  place 
which,  as  in  the  case  of  the  waters  of  the  Gulf,  is  legally 
embraced  within  the  status  of  indivisibiUty  and  commu- 
nity, and  which  would  result  in  diminishment  to  the 
prejudice  of  those  States  that,  like  El  Salvador  and  Hon- 
duras, have  not  consented  to  the  establishment  of  a  naval 
base  in  the  common  waters. 

The  danger  resulting  to  the  riparian  States  from  the 
presence  of  the  naval  base  in  the  Gulf  cannot  be  doubted, 
and  the  State  or  States  that  seek  to  create  that  menacing 
danger  to  the  security  of  the  others,  by  that  act  alone 
violate  the  principles  of  natural  law  which  are  as  obliga- 
tory upon  nations  as  upon  individuals.  It  would  be  easy 
to  cite  a  multitude  of  cases  wherein  the  danger  that  men- 
aces the  security  of  a  country  has  given  it  the  indisputable 
right  to  oppose  the  creation  of  such  a  state  of  facts.  The 
opposition  of  France  and  England  to  the  establishment 
by  Germany  of  a  naval  base  in  Agadir,  in  191 1,  is  a 
recent  example  even  more  in  point  in  this  matter  of 
legal  and  moral  order. 

Therefore,  the  flagrant  conflict  existing  between  the 
stipulations  of  the  Bryan-Chamorro  treaty  and  the 
principles  of  international  law  that  justify  the  legal 
status  of  the  Gulf  of  Fonseca,  constitutes  a  further  and 
incontestable  reason  for  holding  the  rights  claimed  under 
that  pact  to  be  unfounded  and  without  legal  value. 


76 

If  the  Government  of  the  United  States,  as  it  doubtless 
intends,  is  to  give  effective  and  practical  value  to  the 
Senate  amendment  that  provides  against  the  diminution 
of  El  Salvador's  existing  rights,  it  can  accomplish  this 
in  no  other  way  than  by  satisfying  those  legitimate 
rights  of  security,  sovereignty  and  joint-ownership  by 
renouncing  its  design  to  create  in  the  Gulf  of  Fonseca  a 
military  base  or  establishment. 

Supported  by  the  foregoing  considerations,  which  are 
respectfully  brought  to  the  attention  of  the  North  Ameri- 
can Government,  this  Foreign  Office  formally  declares 
that  it  does  not  recognize  the  validity  of  the  Nicaraguan 
Treaty  so  far  as  it  provides  for  the  establishment  of  a 
naval  base  in  the  Gulf  of  Fonseca,  and  that,  therefore, 
against  that  treaty  the  Government  of  El  Salvador  will 
always  make  use  of  all  measures  and  proceedings  which 
existing  conventions  and  justice  and  international  law 
have  placed  in  its  hands  for  the  purpose  of  establishing  its 
invalidity. 

Again,  Sir,  I  beg  leave  to  assure  you  of  my  high  and 
distinguished  consideration. 

F.  Martinez  Suarez, 


APPENDIX  L. 

Ministry  of  Foreign  Relations, 

San  Salvador,  April  14,  igi6. 
His  Excellency  the  Minister  of  Foreign  Relations 
Of  the  Repubhc  of  Nicaragua, 
Managua. 

Mr.  Minister: 

When  the  Government  of  El  Salvador  received  the  news 
that  the  Nicaraguan  Repubhc  had  opened  negotiations 
with  the  United  States  involving  the  alienation  of  a  zone 
through  its  territory  from  sea  to  sea  for  the  construction 
therein,  at  the  election  of  the  United  States,  of  an  inter- 
oceanic  canal,  and  the  Concession  to  the  latter  Govern- 
ment for  the  establishment  of  a  naval  base  at  a  point  on 
Nicaraguan  territory  bounding  on  the  Gulf  of  Fonseca, 
my  Government  lodged  a  protest  with  the  Department  of 
State  of  the  United  States,  in  the  note  of  our  Legation  in 
that  country  bearing  date  October  21,  1913,  a  copy  of 
which  is  contained  in  the  Official  Gazette  of  the  23d  of 
October,  1913,  which  I  have  the  honor  to  hand  you  here- 
with. 

Subsequently  the  Salvadorean  Legation  at  Washington, 
acting  under  instructions  from  this  Department,  presented 
a  second  protest,  which  Your  Excellency  is  requested  to 
read  in  the  note  of  February  9th  last,  that  was  amplified 
in  the  note  addressed,  on  the  3rd  of  March  following,  by 
this  Foreign  Office  to  the  United  States  Legation  accred- 
ited to  this  Capital. 

These  last-referred-to  documents  are  quoted  literally 
in  the  report  of  this  Department  pubUshed  in  the  Official 
Gazette  of  March  6th  of  this  year  (a  copy  of  which  is  also 
handed  you  with  this  despatch)  which  will  be  dehvered  to 
Your  Excellency  by  the  Foreign  Office  couriers,  Captain 
Jose  A.   Menendez  and  Lieutenant   Santiago    Ch.   Jdu- 

regui. 

(77) 


78 

The  bases  supporting  those  protests  of  El  Salvador  to 
the  Government  of  the  United  States,  which  were  prompted 
by  the  negotiation  of  the  treaty  afterwards  subscribed  at 
the  City  of  Washington  by  the  vSecretary  of  State,  the 
Hon.  William  J.  Bry^an,  and  General  don  Emiliano  Cha- 
morro,  in  his  capacity  of  Minister  Plenipotentiary  of  Nica- 
ragua, warrant  my  Government  in  formulating  and  lodg- 
ing with  the  Government  of  Your  Excellency  as  well,  a 
similar  protest  against  the  conclusion  of  that  treaty  which 
is  now  pending  ratification  by  the  Legislative  Bodies  of 
that  sister  Republic,  and  such  protest  is  hereby  made  on 
behalf  of  my  Government. 

This  Foreign  Office  does  not  doubt  that  Your  Excel- 
lency's illustrious  Government,  inspired  by  the  same 
spirit  of  Central  Americanism  as  well  as  by  sentiments  of 
sincere  responsiveness  to  the  cordial  friendship  that  the 
Government  of  El  Salvador  professes  for  that  of  Nica- 
ragua, will  be  pleased  to  weigh  the  reasons  that  support  El 
Salvador  and  which  demonstrate  conclusively  that  the 
consummation  of  the  Bryan-Chamorro  treaty  will  seri- 
ously injure  the  primordial  interests,  not  only  of  this 
Republic,  but  of  all  Central  America,  and  which,  therefore, 
merit  such  friendly  action  by  the  Government  of  that 
sister  Republic  as  will  definitively  prevent  the  treaty 
from  being  carried  into  effect. 

A  contrar}^'  decision  would  bring  to  the  mind  of  my 
Government  the  conviction  that  the  vital  interests  of  El 
Salvador  and  of  Central  America  have  been  laid  aside  and 
would  force  it  to  adjust  its  future  conduct  in  consonance 
with  that  conviction  and  to  avail  itself  of  every  means 
afforded  by  justice,  law  and  existing  international  com- 
pacts for  the  purpose  of  procuring  the  nullification  of 
the  treaty  in  question. 

I  reiterate  to  Your  Excellency  the  assurances  of  my 
highest  esteem  and  consideration, 

F.  Martinez  Suarez. 


APPENDIX  LL. 

TELEGRAMS 

Managua  Palace,  May  4,  1916. 
His  Excellency, 

the  Minister  of  Foreign  Relations, 
San  Salvador. 

In  accordance  with  Your  Excellency's  telegraphic  mes- 
sage of  yesterday,  I  have  the  honor  to  inform  you  that 
orders  were  duly  given  to  grant  the  Foreign  Office  cour- 
iers of  your  Government,  Captain  Jose  A.  Menendez  and 
Lieut.  Santiago  Jauregui,  the  immunities,  prerogatives 
and  consideration  which  are  their  due,  and  thus  they  were 
received  to-day  at  this  Ministry.  I  reiterate  to  Your 
Excellency  the  assurances  of  my  highest  appreciation. 

Diego  M.  Chamorro. 


Managua  Palace,  May  4,  1916. 
The  Minister  of  Foreign  Relations, 
San  Salvador. 

We  have  placed  the  documents  in  the  hands  of  the  Min- 
ister.    We  await  further  orders.     Respectfully. 

J.  A.  Menendez. 


(79) 


APPENDIX  M. 

Paragraphs  from  the  Annual  Report  of  the  Minister  of 
Foreign  Relations  of  the  Republic  of  Nicaragua  to  the 
National  Congress  for  the  year  1914. 


Protest  of  El  Salvador  Against  the 
Chamorro-Weitzel  Convention. 

Nicaragua's  Note  to  the  American  Legation. 

As  a  result  of  the  conclusion  of  the  Chamorro-Weitzel 
treaty,  which  concedes  to  the  United  States  a  naval  base 
in  the  Gulf  of  Fonseca,  the  Government  of  El  Salvador 
presented  at  Washington  a  protest  wherein  it  claimed 
communal  rights  throughout  the  entire  Gulf,  and  I  be- 
lieved it  to  be  my  duty  to  address  to  the  American  Govern- 
ment, on  the  1 8th  of  April,  19 14,  through  the  medium  of 
its  Legation  at  Managua,  an  explanatory  note  relating  to 
the  matter,  which  was  accompanied  by  a  map  of  the  Bay 
of  Fonseca  and  a  copy  of  Act  II  signed  by  the  Nicaragua- 
Honduran  Mixed  Boundary  Commission  created  under 
the  Gamez-Bonilla  treaty  of  October  7,  1894. 

By  virtue  of  Article  I  of  that  pact  the  Governments  of 
Nicaragua  and  Honduras  appointed  commissioners  to  con- 
stitute the  Mixed  Boundary  Commission  charged  with  the 
amicable  settlement  of  all  pending  doubts  and  differences 
and  the  demarcation,  on  the  land,  of  the  divisionary  line 
that  was  to  establish  the  frontier  boundary  of  the  two 
Republics.  The  membership  of  the  Commission  was  made 
up  of  Dr.  don  Salvador  Castrillo  and  the  Engineer,  don 
Emilio  Miiller,  on  the  part  of  Nicaragua,  and  of  Dr.  don 
Pedro  J.  Bustillo  and  Dr.  don  E.  Constantino  Fiallos,  on 
the  part  of  Honduras,  and  the  Commission  sat  in  the  town 
of  San  Marcos  de  Colon  on  the  24th  of  February,  1900. 

(80) 


8i 

According  to  Acts  II,  III,  and  IV  it  fixed  the  boundaries 
of  the  three  sections,  from  Amatillo  Point,  in  the  lower 
part  of  the  Negro  River,  to  the  small  port  through  which 
passes  the  road  from  Totecacinte,  which  port  was  chosen 
as  the  terminal  of  the  third  section  as  a  divisionary  line 
and  designated,  conventionally,  for  that  purpose  under  the 
name  of  Portillo  de  Totecacinte.  That  demarcation  fixed 
definitively  the  boundaries  between  the  two  countries 
according  to  Rule  ist  of  Article  II,  which  reads:  "The 
lines  on  which  the  two  Republics  shall  have  agreed,  or  as 
to  which  there  is  no  dispute  between  them,  shall  constitute 
the  boundaries  between  Honduras  and  Nicaragua." 

By  Act  II  above  mentioned,  the  divisionary  line  be- 
tween the  territories  of  Nicaragua  and  Honduras  in  the 
Gulf  of  Fonseca  was  marked  out  as  follows : 

"From  the  point  known  by  the  name  of  El  Ama- 
tillo, in  the  lower  part  of  the  Negro  River,  the  boun- 
dary is  a  straight  line  drawn  in  the  direction  of  Cosi- 
giiina  volcano,  bearing  South  86°  30'  West  and  dis- 
tant approximately  37  kilometers  to  a  point  in  the 
middle  of  the  Bay  of  Fonseca,  equidistant  from 

THE  COASTS  OF  THE  TWO  REPUBLICS  ON  THAT  SIDE  ;  and 

from  that  point  it  follows  the  division  of  the  waters 
of  the  Bay  over  a  line,  also  equidistant  from  the 

SAID  COASTS,  TO  THE  CENTER  OT  THE  SPACE  BETWEEN 

THE  Northern  part  of  Cosiguina  Point  and  the 
Southern  part  of  Tigre  Island." 

That  line  is  so  indicated  and  marked  out  on  a  map 
accompanied  by  a  description  thereof,  to  be  found  in  the 
volume  of  Acts  of  the  Mixed  Boundary  Commission. 

There  exists,  then,  no  community  between  Nicaragua 
and  Honduras  in  the  Gulf  of  Fonseca,  and  El  Salvador, 
being  neither  a  neighbor  nor  a  co-boundary  vState  with  us, 
since  the  Republic  of  Honduras  lies  in  between,  the  com- 
munity claimed  with  Nicaragua  and  alleged  in  the  Sal- 
vadorean protest  does  not,  and  cannot,  exist. 


82 

Furthermore,  the  status  of  common  ownership  in,  and 
indivisibleness  of,  the  waters  of  a  bay  is  very  different  from 
that  of  an  inheritance  or  an  estate  in  lands,  for,  whereas, 
with  respect  ^o  the  former,  there  exists  the  general  prin- 
ciple that  the  parts  adjacent  to  their  coasts  belong  to  the 
several  nations — so  that,  on  the  laying  out  of  the  terres- 
trial boundary  line,  demarcation  of  the  maritime  waters 
is  understood — there  is  no  similar  principle  with  respect 
to  landed  properties,  since  the  coparceners  thereof  at  one 
point  or  another,  stand  to  receive  what  belongs  to  them 
indifferently,  and,  even  in  a  case  where  the  landed  proper- 
ties are  contiguous,  the  civil  law  provides  that  the  portion 
to  be  adjudicated  to  each  coparcener  shall  be  that  part  of 
the  common  property  which  is  contiguous  to  his  own  land. 

A  nation  cannot  possess  the  right  to  a  larger  expanse  of 
waters  in  a  bay  held  in  common  with  of  crs  than  that 
which  the  extension  of  its  coasts  fixes  as  belonging  to  it; 
and  the  Republic  of  El  Salvador,  being  situated  at  the 
extreme  Northwest  of  the  Bay  of  Fonseca,  and  the  Repub- 
lic of  Nicaragua  in  the  extreme  Southeast,  and  the  two 
being  separated  by  Honduras,  it  is  impossible  that  the 
maritime  ownership  of  the  former  could  extend  a  single 
inch  beyond  the  point  fixed  by  the  limit  of  its  coasts  that 
separates  it  from  Honduran  territory. 

I  have  entered  into  these  details  for  the  purpose  of 
showing  that  Nicaragua,  in  negotiating  with  the  United 
States  in  the  interest  of  her  development  and  progress  as  a 
nation,  negotiated  respecting  that  part  of  her  territory 
that  belongs  exclusively  to  her  as  a  State  and  lies  within 
her  respective  frontier  demarcations,  and  did  not  injure 
in  the  slightest  degree  the  legitimate  rights  and  interests 
of  El  Salvador  or  those  of  any  other  Republic  of  Central 
America. 

Diego  M.  Chamorro. 

Managua,  January  ij,  iQij. 


APPENDIX  N. 

ARTICLES  FROM  THE  LAW  OF  NAVIGATION  AND 
MARINE,  TAKEN  FROM  THE  CODIFICATION  OF 
NATIONAL  LAWS  SANCTIONED  BY  THE  DECREE 
OF  FEBRUARY  21,   1879. 


General  Principles. 

*  ****** 

Art.  2. — Estuaries,  coves  and  bays,  and  the  contig- 
uous open  sea  to  a  distance  of  one  marine  league,  meas- 
ured from  extreme  low  tide,  are  of  national  ownership; 
but  the  police  power,  for  purposes  connected  with  the 
country's  security  and  the  enforcement  of  the  fiscal  laws, 
extends  to  a  distance  of  four  marine  leagues  measured 
from  extreme  low  tide. 


Maritime  Departments. 

Art.  13. — The  territorial  sea  of  the  Republic  is  divided 
into  five  maritime  departments,  as  follows : 

First. — The  maritime  department  of  La  Union,  com- 
prising the  Bay  of  Conchagua,  that  part  of  the  Gulf  of 
Fonseca  wherein  are  situated  the  Salvadorean  islands, 
and  the  territorial  sea  as  far  as  the  parallel  of  the  eastern 
mouth  of  the  San  Miguel  river. 

Art.  16. — All  officers  exercising  marine  command  will 
enforce  the  nation's  pohce  power  over  the  four  marine 
leagues  mentioned  in  Article  2,  within  the  limits  indicated 
by  the  prolongations  of  the  parallels  that  mark  out  the 
respective  departments. 

******* 

(83) 


APPENDIX  O. 

San  Salvador,  June  14,  igi6. 

Sefior  don  CarIvOS  Mele:ndez, 

President  of  the  Republic, 
San  Salvador. 

Sir: 

A  fortunate  occurrence  brought  the  undersigned  to- 
gether shortly  after  we  had  had  the  honor  to  receive  your 
distinguished  communication  relating  to  the  Gulf  of  Fon- 
seca,  and  being  employed  in  the  same  matter  and  having 
been  jointly  engaged  in  the  labor  of  preparing  the  New 
Map  of  El  Salvador,  we  have  consulted  each  other  re- 
specting certain  points  involved  in  said  communication, 
and,  therefore,  for  the  sake  of  convenience  and_to  avail 
ourselves  of  the  greater  advantage  of  the  opinion  of  both, 
have  written  and  subscribed  the  present  joint  reply. 

The  map  of  the  Gulf  of  Fonseca,  which  we  have  the 
honor  to  submit  herewith,  is  traced  in  conformity  with 
the  map  of  the  American  Admiralty,  which  is,  in  our 
opinion,  the  one  that  best  shows  that  part  of  the  Central 
American  coast  on  the  Pacific  side. 

Its  scale  is  1  +  150,000,  or  1  =  150,000;  that  is  to  say, 
I  millimeter  in  the  map  represents  an  actual  distance  of 
150  meters,  and,  therefore,  a  marine  mile  (1,850  meters) 
is  represented  by  12.33  millimeters,  a  marine  league  by 
37  millimeters,  and  4  marine  leagues  by  148  millimeters. 

We  have  not  taken  into  account  the  difference  between 
high  and  low  tides  as  they  are  not  appreciable  on  the  said 
scale  and  are  of  no  importance  to  the  case. 

Paralleling  the  coast  we  have  traced,  on  the  vSalvadorean 
and  Nicaraguan  parts  that  form  the  gullets  or  entrance  of 
the  Gulf,  the  two  lines  (distant  twelve  miles  from  the 
coast)  that  mark  the  respective  limits  of  the  zone  of  Mari- 
time Inspection  according  to  the  generally  accepted  pre- 
scriptions in  that  connection,  and  it  is  thus  clearly  to  be 

(84) 


85 

seen  that  those  Hnes  intercept  or  dovetail,  thus  closing 
the  Gulf,  which  is  thereby  reduced  to  an  interior  bay  of 
purely  Central  American  jurisdiction. 

We  have  arrived  at  the  same  conclusion  by  merely  con- 
sidering that  the  entrance  to  the  Gulf  is  35  kilometers, 
approximately,  from  Amapala  Point,  in  El  Salvador,  to 
Cosigiiina  Point,  in  Nicaragua;  and  that,  by  measuring 
four  marine  leagues,  or  22,220  meters,  from  each  of  those 
points  the  lines  traced  necessarily  meet  and  dovetail; 
otherwise  the  entrance  would  have  to  be  at  least  44,440 
meters,  or  nearly  10  kilometers  wider  than  it  is. 

If  the  shortest  distance  between  Meanguerita  Island — • 
an  integral  part  of  the  Salvadorean  coast — and  the  Penin- 
sula of  Cosigiiina  be  taken  as  the  entrance  points  to  the 
Gulf,  the  width  would  be  15  kilometers,  which  is  scarcely 
equal  to  8  miles ;  and  if  the  islets  known  as  the  Farallones 
are  taken  as  the  limit  of  the  Nicaraguan  coast  on  that  side, 
the  entrance  would  be  reduced  to  7  kilometers  950  meters, 
or  some  4  miles  and  a  little  more  than  a  quarter  (0.295). 

The  undersigned  believe  that  a  mere  examination  of  the 
map  attached  hereto  will  resolve  the  problem  to  which 
your  communication  refers,  for  one  instantly  notes  that 
the  Gulf  of  Fonseca  is  nothing  but  an  indentation  with 
but  little  open  sea — a  detail  of  the  coast — which,  by 
reason  of  the  narrowness  of  its  entrance,  is  exclusively 
subject  to  the  jurisdiction  of  Central  America. 

We  have  the  honor  to  submit  the  foregoing  in  response  to 
the  request  you  have  been  pleased  to  lay  before  us. 

Santiago  Ignacio  Barberena, 
Director  of  the  National 
Meteorologic  and  Seismo- 
graphic  Observatory. 

Jose  E.  Alcaine, 

Director   of  the   Office   of 
Official  Engineers. 


JS, 


GULF  or  FONSECA 

COPIFO  AND  ReOOCSO 

rpoM 
usff/ODoefiAPwcomcc 

CMfiT  /VO  973 


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